Committee for PurchaseCommittee for Purchase From People Who Are Blind or Severely DisabledNOTICESProcurement List; Additions and Deletions,11863-118642010-5435CommodityCommodity Credit CorporationNOTICESChesapeake Bay Watershed Initiative,11837-118382010-5438ConsumerConsumer Product Safety CommissionNOTICESMeetings; Sunshine Act,118642010-55502010-5551CorporationCorporation for National and Community ServiceNOTICESAgency Information Collection Activities; Proposals, Submissions, and Approvals,11864-118652010-5437DefenseDefense DepartmentSee

NOTICESApplications for Certificates of Public Convenience and Necessity and Foreign Air Carrier Permits Filed Under Subpart B,119882010-5409Aviation Proceedings, Agreements filed,119882010-5412TreasuryTreasury DepartmentSee

7548Friday, March 12, 2010Rules and RegulationsDEPARTMENT OF COMMERCEEconomic Development Administration13 CFR Part 301[Docket No.: 080213181-0125-013]RIN 0610-AA64Revisions to the EDA RegulationsAGENCY:

Economic Development Administration, Department of Commerce.

ACTION:

Correcting amendment.

SUMMARY:

On January 27, 2010, the Economic Development Administration (“EDA”) published a final rule implementing revisions to its regulations. The final rule responded to all substantive comments received during the public comment period and finalized the rulemaking proceeding in connection with the interim final rule published on October 22, 2008. EDA publishes this rule to correct a heading of a subpart in the regulations that addresses application requirements and evaluation criteria.

On January 27, 2010 (75 FR 4259), the EDA published a final rule implementing certain revisions to its regulations. EDA is publishing this notice to amend the heading of 13 CFR part 301, subpart E, which in general addresses the application requirements and evaluation criteria for EDA investment assistance. This notice removes the words “Proposal and” in the heading of subpart E of part 301.

EDA makes this change to ensure that the heading accurately reflects the current application process. On October 1, 2008, EDA published a notice in theFederal Register(73 FR 57049) to introduce itsApplication for Investment Assistance(Form ED-900). Previously, applicants were required to complete and submit a proposal using thePre-Application for Investment Assistance(Form ED-900P), followed by anApplication for Investment Assistance(Form ED-900A), if EDA deemed that the proposed project merited further consideration. The Form ED-900 consolidates all EDA-specific requirements into a single application, and accordingly, effective November 1, 2008, EDA accepts only the Form ED-900, along with specific forms from the Standard Form 424 family. In line with the October 1, 2008 publication, the January 27, 2010 final rule removed references to the Form ED-900P in EDA's regulations, but inadvertently did not change the subpart heading. Accordingly, this notice corrects this error.

Classification

Prior notice and opportunity for public comment are not required for rules concerning public property, loans, grants, benefits, and contracts (5 U.S.C. 553(a)(2)). Because prior notice and an opportunity for public comment are not required pursuant to 5 U.S.C. 553, or any other law, the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601et seq.) are inapplicable. Therefore, a regulatory flexibility analysis has not been prepared.

Executive Order No. 12866

It has been determined that this final rule is significant for purposes of Executive Order 12866.

Congressional Review Act

This final rule is not major under the Congressional Review Act (5 U.S.C. 801et seq.)

Executive Order No. 13132

Executive Order 13132 requires agencies to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in Executive Order 13132 to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” It has been determined that this final rule does not contain policies that have federalism implications.

Paperwork Reduction Act

This final rule contains collections-of-information subject to review and approval by OMB under the Paperwork Reduction Act (“PRA”). The OMB is required to clear all federally-sponsored data collections pursuant to the PRA. Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection-of-information subject to the requirements of the PRA, unless that collection-of-information displays a currently valid OMB control number.

Regulatory TextFor reasons stated in the preamble, 13 CFR part 301 is corrected by making the following correcting amendment:PART 301—ELIGIBILITY, INVESTMENT RATE AND APPLICATION REQUIREMENTS1. The authority citation for part 301 continues to read as follows:Authority:

The Federal Aviation Administration (FAA) is making minor technical changes to a final rule published in theFederal Registeron December 12, 2007. That final rule required holders of design approvals to make damage tolerance data for repairs and alterations to fatigue critical airplane structure available to operators. After issuing the final rule, the FAA determined that further changes were needed to clarify the applicability of certain provisions and the compliance time of another provision.

The Federal Aviation Administration (FAA) published a final rule in theFederal Registeron December 12, 2007 (72 FR 70486), which amended 14 CFR parts 26, 121, and 129. That final rule requires holders of design approvals to make available to operators damage tolerance (DT) data for repairs and alterations to fatigue critical airplane structure. After issuing the final rule, the FAA determined that minor technical changes are needed to clarify the intent of and compliance with § 26.43(e) and § 26.45(b)(1) and (e)(1).

Change to § 26.43(e)

The change to § 26.43(e) clarifies that this section does not apply to type certificate (TC) holders of pending or future type certified airplane models, including any airplane model type certified after January 11, 2008. This change is relieving to TC holders and does not impact a TC holder's ability to comply with § 26.43(e). The FAA did not intend to require TC holders to develop repair evaluation guidelines (REG) for pending or future type certified airplane models. The purpose of the REG is to enable operators to obtain DT data for existing repairs for which DT data has not already been provided. Section 26.43(b), (c), and (d) already require all TC holders to develop and make available to operators DT data for all future repairs they develop that affect fatigue critical baseline structure. Operators, therefore, will have the DT data for TC holder repairs necessary to support their compliance with 14 CFR 121.1109(c)(2) of the Aging Airplane Safety rule. For repairs developed by the operator or third parties, operators are responsible for developing or obtaining the necessary DT data to comply with the certification bases for these airplanes; it would not be appropriate to impose this obligation on the TC holder.

Change to § 26.45(b)

The change to § 26.45(b)(1) clarifies that § 26.45(b)(1) applies to both existing and future alterations and corrects an inconsistency with § 26.45(b). This change does not require additional work, since § 26.45(b) already applies to existing and future alterations.

Change to § 26.45(e)(1)

The change to § 26.45(e)(1) provides an appropriate compliance time for submitting a list of fatigue critical alteration structure for alteration data approved on or after January 11, 2008. This change is relieving and necessary to correct an oversight in the original regulatory text, which inadvertently imposes a compliance time that cannot be met for future alterations. For alteration data approved on or after January 11, 2008, this change would require that the list of fatigue critical structure be submitted before the alteration data is approved.

Justification for Immediate Adoption

Since this action is relieving to holders of type certificates and clarifies the intent of the regulations, the FAA finds that notice and public comment under 5 U.S.C. 553(d) is unnecessary. For the same reason, the FAA finds good cause exists under 5 U.S.C. 553(d) for making this rule effective upon publication.

Technical Amendment

The technical amendment clarifies the applicability of § 26.43(e) and the scope of § 26.45(b)(1). This technical amendment also adds to § 26.45(e)(1) an appropriate compliance time for submitting fatigue critical alteration structure for alteration data approved on or after January 11, 2008.

List of Subjects in 14 CFR Part 26

Aircraft, Aviation safety, Continued airworthiness.

Accordingly, Title 14 of the Code of Federal Regulations (CFR) part 26 is amended as follows:PART 26—CONTINUED AIRWORTHINESS AND SAFETY IMPROVEMENTS FOR TRANSPORT CATEGORY AIRPLANES1. The authority citation for part 26 continues to read as follows:Authority:

The Tennessee Valley Authority is amending its regulations which contain TVA's procedures for the Freedom of Information Act (FOIA), the Privacy Act, and the Government in the Sunshine Act. These amendments reflect changes in position titles and addresses; for FOIA purposes, update the definitions of “news media” and “news media requesters” to reflect changes in the way news is delivered; conform references to Privacy Act systems of records to the most current publication of TVA's Privacy Act Systems Notices in theFederal Register; clarify special procedures for the release of certain medical records in response to Privacy Act requests; pursuant to amendments to the TVA Act, reflect changes in the number of TVA Board members required for a quorum; and make other editorial changes.

This rule was not published in proposed form since it relates to agency procedure and practice. TVA considers this rule to be a procedural rule which is exempt from notice and comment under 5 U.S.C. 533(b)(3)(A). This rule is not a significant rule for purposes of Executive Order 12866 and has not been reviewed by the Office of Management and Budget. As required by the Regulatory Flexibility Act, TVA certifies that these regulatory amendments will not have a significant impact on small business entities. Since this rule is nonsubstantive, it is being made effective March 12, 2010.

List of Subjects in 18 CFR Part 1301

Freedom of Information, Government in the Sunshine, Privacy.

For the reasons stated in the preamble, TVA amends 18 CFR Part 1301 as follows:PART 1301—PROCEDURESSubpart A—Freedom of Information Act1. The authority citation for part 1301, Subpart A, is revised to read as follows:Authority:

16 U.S.C. 831-831ee, 5 U.S.C. 552.

2. In § 1301.3, revise paragraphs (a) and (b) to read as follows:§ 1301.3Requirements for making requests.

(a) How made and addressed.You may make a request for records of TVA by writing to the Tennessee Valley Authority, FOIA Officer, 400 W. Summit Hill Drive (WT 7D), Knoxville, Tennessee 37902-1401. You may find TVA's “Guide to Information About TVA”—which is available electronically athttp://www.tva.gov,and is available in paper form as well—helpful in making your request. For additional information about the FOIA, you may refer directly to the statute. If you are making a request for records about yourself, see Subpart B Privacy Act for additional requirements. If you are making a request for records about another individual, either a written authorization signed by that individual permitting disclosure of those records to you or proof that that individual is deceased (for example, a copy of a death certificate or an obituary) will help the processing of your request. Your request will be considered received as of the date it is received by the FOIA Officer. For the quickest possible handling, you should mark both your request letter and the envelope “Freedom of Information Act Request.”

(b)Descriptions of records sought.You must describe the records that you seek in enough detail to enable TVA personnel to locate them with a reasonable amount of effort. Whenever possible, your request should include specific information about each record sought, such as the date, title or name, author, recipient, and subject matter of the record. If known, you should include any file designations or descriptions for the records that you want. As a general rule, the more specific you are about the records or type of records that you want, the more likely TVA will be able to locate those records in response to your request. If TVA determines that your request does not reasonably describe records, you will be informed what additional information is needed or why your request is otherwise insufficient. TVA shall also give you an opportunity to discuss your request so that you may modify it to meet the requirements of this section. If your request does not reasonably describe the records you seek, the agency's response to your request may be delayed.

(b)Multi-track processing procedures.TVA has established three tracks for handling requests and the track to which a request is assigned will depend on the nature of the request and the estimated processing time, including a consideration of the number of pages involved. If TVA places a request in a track other than Track 1, it will advise requesters of the limits of its faster track(s). TVA may provide requesters in its tracks 2 and 3 with an opportunity to limit the scope of their requests in order to qualify for faster processing within the specified limits of TVA's faster track(s). When doing so, TVA may contact the requester either by telephone, e-mail, or letter, whichever is most efficient in each case.

(a)Appeals of adverse determinations.If you are dissatisfied with TVA's response to your request, you may appeal an adverse determination denying your request, in any respect, to TVA's FOIA Appeal Official, Tennessee Valley Authority, 400 W. Summit Hill Drive (WT 7D), Knoxville, Tennessee 37902-1401. You must make your appeal in writing, and it must be received by the FOIA Appeal Official within 30 days of the date of the letter denying your request. Your appeal letter may include as much or as little related information as you wish, as long as it clearly identifies the TVA determination (including the assigned request number, if known) that you are appealing. An adverse determination by the TVA FOIA Appeal Official will be the final action of TVA.

(6)Representative of the news media,ornews media requester,means anyperson or entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience. In this subsection, the term “news” means information that is about current events or that would be of current interest to the public. Examples of news media entities include television or radio stations broadcasting to the public at large and publishers of periodicals (but only in those instances where they can qualify as disseminators of “news”) who make their products available for purchase by or subscription by or free distribution to the general public. These examples are not all-inclusive. Moreover, as methods of news delivery evolve (for example, the adoption of the electronic dissemination of newspapers through telecommunications services), such alternative media shall be considered to be new media entities. For “freelance” journalists to be regarded as working for a news organization, they must demonstrate a solid basis for expecting publication through that organization. A publication contract would be the clearest proof, but TVA shall also look to the past publication record of a requester in making this determination. To be in this category, a requester must not be seeking the requested records for a commercial or private use. However, a request for records supporting the news-dissemination function of the requester shall not be considered to be for a commercial use.

Subpart B—Privacy Act6. The authority citation for part 1301, Subpart B, is revised to read as follows:Authority:

(f) The termreviewing officialmeans TVA's Vice President, Human Resources Shared Services & Employee Relations (or incumbent of a successor position), or another TVA official designated by the Vice President in writing to decide an appeal pursuant to § 1301.19;

8. In § 1301.14, revise paragraph (g) to read as follows:§ 1301.14Times, places, and requirements for identification of individuals making requests.

(g) In general, TVA offices located in the Eastern Time zone are open 8 a.m. to 4:45 p.m., and those in the Central Time zone 7:30 a.m. to 4:15 p.m. Offices are closed on Saturdays, Sundays, and the following holidays: New Year's Day, Birthday of Martin Luther King, Jr., Presidents' Day, Memorial Day, Independence Day, Labor Day, Columbus Day, Veterans Day, Thanksgiving Day, and Christmas Day.

If, in the judgment of TVA, the transmission of medical records, including psychological records, directly to a requesting individual could have an adverse effect upon such individual, TVA may refuse to disclose such information directly to the individual. TVA will, however, disclose this information to a licensed health care provider or legal representative designated by the individual in writing who should then provide the records to the individual along with any necessary interpretations.

(a) An individual may appeal an initial determination refusing to amend that individual's record in accordance with this section. An appeal must be taken within 20 days of receipt of notice of TVA's initial refusal to amend the record and is taken by delivering a written notice of appeal to the Privacy Act Reviewing Official, Tennessee Valley Authority, Knoxville, Tennessee 37902-1401. Such notice shall be signed by the appellant and shall state:

11. Revise § 1301.23 to read as follows:§ 1301.23General exemptions.

Individuals may not have access to records maintained by TVA but which were provided by another agency which has determined by regulation that such information is subject to general exemption under 5 U.S.C. 552a(j). If such exempt records are within a request for access, TVA will advise the individual of their existence and of the name and address of the source agency. For any further information concerning the record and the exemption, the individual must contact that source agency.

(b)(1) The TVA systems “Apprentice Training Record System-TVA,” “Consultant and Contractor Records-TVA,” “Employment Applicant Files-TVA,” “Personnel Files-TVA,” and “Nuclear Quality Assurance Personnel Records-TVA” are exempted from subsections (d); (e)(4)(H); (f)(2), (3), and (4) of 5 U.S.C. 552a and corresponding sections of these rules to the extent that disclosure of material would reveal the identity of a source who furnished information to the Government under an express promise that the identity of the source would be held in confidence, or prior to September 27, 1975, under an implied promise that the identity of the source would be held in confidence. These TVA systems are exempted pursuant to section (k)(5) of 5 U.S.C. 552a (section 3 of the Privacy Act).

(c)(1) The TVA systems “Apprentice Training Record System-TVA,” “Consultant and Contractor Records-TVA,” “Employment Applicant Files-TVA,” and “Personnel Files-TVA,” are exempted from subsections (d); (e)(4)(H); (f)(2), (3), and (4) of 5 U.S.C. 552a and corresponding sections of these rules to the extent that disclosure of testing or examination material used solely to determine individual qualifications for appointment or promotion in the Federal service would compromise the objectivity or fairness of the testing or examination process. These systems are exempted pursuant to section (k)(6) of 5 U.S.C. 552a (section 3 of the Privacy Act).

Subpart C—Government in the Sunshine Act13. The authority citation for part 1301, Subpart C, is revised to read as follows:Authority:

(b) The termmeetingmeans the deliberations of five or more members of the TVA Board where such deliberations determine or result in the joint conduct or disposition of official TVA business, but the term does not include deliberations required or permitted by § 1301.44 or § 1301.45;

15. In § 1301.44, revise paragraphs (b) and (c) to read as follows:§ 1301.44Notice of meetings.

(b) Such public announcement shall be made at least one week before the meeting unless a majority of the members determines by a recorded vote that TVA business requires that such meeting be called at an earlier date. If an earlier date is so established, TVA shall make such public announcement at the earliest practicable time.

(c) Following a public announcement required by paragraph (a) of this section, the time or place of the meeting may be changed only if TVA publicly announces the change at the earliest practicable time. The subject matter of a meeting or the determination to open or close a meeting or portion of a meeting to the public may be changed following the public announcement required by paragraph (a) of this section only if a majority of the entire membership determines by a recorded vote that TVA business so requires and that no earlier announcement of the change was possible and if TVA publicly announces such change and the vote of each member upon such change at the earliest, practicable time.

(a) Action under § 1301.46 to close a meeting shall be taken only when a majority of the members vote to take such action. A separate vote shall be taken with respect to each meeting a portion or portions of which are proposed to be closed to the public pursuant to § 1301.46 or with respect to any information which is proposed to be withheld under § 1301.46. A single vote may be taken with respect to a series of meetings, a portion or portions of which are proposed to be closed to the public, or with respect to any information concerning such series of meetings, so long as each meeting in such series involves the same particular matters and is scheduled to be held no more than 30 days after the initial meeting in such series. The vote of each member participating in such vote shall be recorded and no proxies shall be allowed.

17. In § 1301.48, revise paragraphs (a), (c), and (d) to read as follows:§ 1301.48Public availability of transcripts and other documents.

(a) Public announcements of meetings pursuant to § 1301.44, written copies of votes to change the subject matter of meetings made pursuant to § 1301.44(c), written copies of votes to close meetings and explanations of such closings made pursuant to § 1301.45(c), and certifications of the General Counsel made pursuant to § 1301.45(d) shall be available for public inspection during regular business hours in the TVA Research Library, 400 W. Summit Hill Drive, Knoxville, Tennessee 37902-1401.

(c) In the event the person making a request under paragraph (b) of this section has reason to believe that all transcripts, electronic recordings, or minutes or portions thereof requested by that person and required to be made available under paragraph (b) of this section were not made available, the person shall make a written request to the Senior Manager, Media Relations, for such additional transcripts, electronic recordings, or minutes or portions thereof as that person believes should have been made available under paragraph (b) of this section and shall set forth in the request the reasons why such additional material is required to be made available with sufficient particularity for the Senior Manager, Media Relations, to determine the validity of such request. Promptly after a request pursuant to this paragraph is received, the Senior Manager, Media Relations, or his/her designee shall make a determination as to whether to comply with the request, and shall immediately give written notice of the determination to the person making the request. If the determination is to deny the request, the notice to the person making the request shall include a statement of the reasons for the denial, a notice of the right of the person making the request to appeal the denial to TVA's Senior Vice President, Communications, and the time limits thereof.

(d) If the determination pursuant to paragraph (c) of this section is to deny the request, the person making the request may appeal such denial to TVA's Senior Vice President, Communications. Such an appeal must be taken within 30 days after the person's receipt of the determination by the Senior Manager, Media Relations, and is taken by delivering a written notice of appeal to the Senior Vice President, Communications, Tennessee Valley Authority, Knoxville, Tennessee 37902-1401. Such notice shall include a statement that it is an appeal from a denial of a request under § 1301.48(c) and the Government in the Sunshine Act and shall indicate the date on which the denial was issued and the date on which the denial was received by the person making the request. Promptly after such an appeal is received, TVA's Senior Vice President, Communications, or the Senior Vice President's designee shall make a final determination on the appeal. In making such a determination, TVA will consider whether or not to waive the provisions of any exemption contained in § 1301.46. TVA shall immediately give written notice of the final determination to the person making the request. If the final determination on the appeal is to deny the request, the notice to the person making the request shall include a statement of the reasons for the denial and a notice of the person's right to judicial review of the denial.

EPA is approving a State Implementation Plan (SIP) revision submitted by the Commonwealth of Virginia. The revision pertains to the timing for the first phase of the sulfur dioxide (SO2) trading budget under the Commonwealth's approved regulations that implement the requirements of the Clean Air Interstate Rule (CAIR). EPA is approving this revision to change the start date of Virginia's CAIR SO2trading budget from the control period in 2009 to the control period in 2010 in accordance with the requirements of the Clean Air Act (CAA).

DATES:

Effective Date:This final rule is effective on April 12, 2010.

ADDRESSES:

EPA has established a docket for this action under Docket ID Number EPA-R03-OAR—2009-0599. All documents in the docket are listed in thehttp://www.regulations.govWeb site. Although listed in the electronic docket, some information is not publicly available,i.e.,confidential business information (CBI) or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically throughhttp://www.regulations.govor in hard copy for public inspection during normal business hours at the Air Protection Division, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of the State submittal are available at the Virginia Department of Environmental Quality, 629 East Main Street, Richmond, Virginia 23219.

Throughout this document, whenever “we,” “us,” or “our” is used, we mean EPA.

On January 14, 2009, the Commonwealth of Virginia submitted a formal revision to its SIP. The SIP revision consists of a change in timing for the first phase of the Commonwealth's approved CAIR SO2trading budget. The start for the first phase of the SO2trading budget is changed from the control period in 2009 to the control period in 2010.

On October 22, 2009 (74 FR 54485), EPA published a Direct Final Rule (DFRN) to approve the January 14, 2009 SIP revision submitted by the Commonwealth of Virginia. On October 26, 2009, EPA received a comment, and on November 23, 2009 (74 FR 61037), EPA withdrew the DFRN and noted that the comment would be addressed in a final action based on the Notice of Proposed Rulemaking (NPR) published on October 22, 2009 (74 FR 54534). The comment period closed on November 23, 2009. No additional comments were received.

Comment:An anonymous commenter submitted the comment: “I am not sure about this rule.”

Response:The comment, while vaguely expressing a general uncertainty about the rule, does not identify any particular defect in the rule substance or adoption. Importantly, the comment does not oppose EPA's proposed full approval of the rule. EPA therefore believes that no additional response is necessary.

II. Summary of SIP Revision

Virginia regulation 9 VAC 5-140-3400 originally required that the Commonwealth's CAIR SO2budget applied starting with the control period in 2009. However, the EPA-administered CAIR SO2trading programs under States' CAIR SIPs and under the CAIR FIP start on January 1, 2010, and the associated CAIR SO2trading budgets apply starting with the 2010 control period. To make the Virginia CAIR SO2trading program requirements consistent with the regional trading program requirements, Virginia revised regulation 9 VAC-5-140-3400 to change this date from 2009 to 2010. In the SIP revision, Virginia explains that this change corrects a technical error in its approved CAIR SIP. The SIP revision also includes a clarifying revision to the description of the State's SO2budget.

III. General Information Pertaining to SIP Submittals from the Commonwealth of Virgina

In 1995, Virginia adopted legislation that provides, subject to certain conditions, for an environmental assessment (audit) “privilege” for voluntary compliance evaluations performed by a regulated entity. The legislation further addresses the relative burden of proof for parties either asserting the privilege or seeking disclosure of documents for which the privilege is claimed. Virginia's legislation also provides, subject to certain conditions, for a penalty waiver for violations of environmental laws when a regulated entity discovers such violations pursuant to a voluntary compliance evaluation and voluntarily discloses such violations to the Commonwealth and takes prompt and appropriate measures to remedy the violations. Virginia's Voluntary Environmental Assessment Privilege Law, Va. Code Sec. 10.1-1198, provides a privilege that protects from disclosure documents and information about the content of those documents that are the product of a voluntary environmental assessment. The Privilege Law does not extend to documents or information (1) that are generated or developed before the commencement of a voluntary environmental assessment; (2) that are prepared independently of the assessment process; (3) that demonstrate a clear, imminent and substantial danger to the public health or environment; or (4) that are required by law.

On January 12, 1998, the Commonwealth of Virginia Office of the Attorney General provided a legal opinion that states that the Privilege law, Va. Code Sec. 10.1-1198, precludes granting a privilege to documents and information “required by law,” including documents and information “required by Federal law to maintain program delegation, authorization or approval,” since Virginia must “enforce Federally authorized environmental programs in a manner that is no less stringent than their Federal counterparts. * * *” The opinion concludes that “[r]egarding § 10.1-1198, therefore, documents or other information needed for civil or criminal enforcement under one of these programs could not be privileged because such documents and information are essential to pursuing enforcement in a manner required by Federal law to maintain program delegation, authorization or approval.”

Virginia's Immunity law, Va. Code Section 10.1-1199, provides that “[t]o the extent consistent with requirements imposed by Federal law,” any person making a voluntary disclosure of information to a State agency regarding a violation of an environmental statute, regulation, permit, or administrative order is granted immunity from administrative or civil penalty. The Attorney General's January 12, 1998 opinion states that the quoted languagerenders this statute inapplicable to enforcement of any Federally authorized programs, since “no immunity could be afforded from administrative, civil, or criminal penalties because granting such immunity would not be consistent with Federal law, which is one of the criteria for immunity.”

Therefore, EPA has determined that Virginia's Privilege and Immunity statutes will not preclude the Commonwealth from enforcing its program consistent with the Federal requirements. In any event, because EPA has also determined that a State audit privilege and immunity law can affect only State enforcement and cannot have any impact on Federal enforcement authorities, EPA may at any time invoke its authority under the CAA, including, for example, sections 113, 167, 205, 211 or 213, to enforce the requirements or prohibitions of the State plan, independently of any State enforcement effort. In addition, citizen enforcement under section 304 of the Clean Air Act is likewise unaffected by this, or any, State audit privilege or immunity law.

IV. Final Action

EPA is approving the SIP revision submitted by the Commonwealth of Virginia on January 14, 2009. The SIP revision incorporates a timing change to the Commonwealth's CAIR SO2trading program that make it consistent with the regional CAIR SO2trading program, under which SO2trading budgets apply starting in 2010, as well as a clarifying revision to the description of the State's SO2budget.

V. Statutory and Executive Order ReviewsA. General Requirements

Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve State choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves State law as meeting Federal requirements and does not impose additional requirements beyond those imposed by State law. For that reason, this action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);

• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501et seq.);

• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601et seq.);

• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and

• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have Tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the State, and EPA notes that it will not impose substantial direct costs on Tribal governments or preempt Tribal law.

B. Submission to Congress and the Comptroller General

The Congressional Review Act, 5 U.S.C. 801et seq.,as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in theFederal Register. A major rule cannot take effect until 60 days after it is published in theFederal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

C. Petitions for Judicial Review

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by May 11, 2010. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action.

This action to approve a revision to Virginia's CAIR SO2Trading Program may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

Subpart VV—Virginia2. In § 52.2420, the table in paragraph (c) is amended by adding a heading to the table, revising the heading for 9 VAC 5, Chapter 140, and the entry 5-140-3400 to read as follows:§ 52.2420Identification of plan.

This regulation amends the current temporary exemption from the requirement of a tolerance for residues of the biochemical pesticide S-Abscisic Acid, (S)-5-(1-hydroxy-2,6,6-trimethyl-4-oxo-1-cyclohex-2-enyl)-3-methyl-penta-(2Z,4E)-dienoic Acid (ABA), to make it a permanent exemption from the requirement of a tolerance for residues of ABA in or on all food commodities when applied or used preharvest as a plant regulator. Valent Biosciences Corporation submitted a petition to EPA under the Federal Food, Drug, and Cosmetic Act (FFDCA), requesting that the Agency amend the existing temporary exemption from the requirement of a tolerance. This regulation eliminates the need to establish a maximum permissible level for residues of S-Abscisic Acid.

DATES:

This regulation is effective March 12, 2010. Objections and requests for hearings must be received on or before May 11, 2010, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of theSUPPLEMENTARY INFORMATION).

ADDRESSES:

EPA has established a docket for this action under docket identification (ID) number EPA-HQ-OPP-2009-0127. All documents in the docket are listed in the docket index available athttp://www.regulations.gov. Although listed in the index, some information is not publicly available, e.g., Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available in the electronic docket athttp://www.regulations.gov, or, if only available in hard copy, at the OPP Regulatory Public Docket in Rm. S-4400, One Potomac Yard (South Bldg.), 2777 S. Crystal Dr., Arlington, VA. The Docket Facility is open from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The Docket Facility telephone number is (703) 305-5805.

SUPPLEMENTARY INFORMATION:I. General InformationA. Does this Action Apply to Me?

You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to:

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed underFOR FURTHER INFORMATION CONTACT.

B. How Can I Get Electronic Access to Other Related Information?

You may access a frequently updated electronic version of 40 CFR part 180 through the Government Printing Office's e-CFR site athttp://www.gpoaccess.gov/ecfr.

C. Can I File an Objection or Hearing Request?

Under section 408(g) of FFDCA, 21 U.S.C. 346a(g), any person may file an objection to any aspect of this regulationand may also request a hearing on those objections. The EPA procedural regulations which govern the submission of objections and requests for hearings appear in 40 CFR part 178. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2009-0127 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before May 11, 2010. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing that does not contain any CBI for inclusion in the public docket that is described inADDRESSES. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit your copies, identified by docket ID number EPA-HQ-OPP-2009-0127, by one of the following methods:

In theFederal Registerof May 6, 2009 (74 FR 20946) (FRL-8411-2), EPA issued a notice pursuant to section 408(d)(3) of FFDCA, 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide tolerance petition (PP 8F7391) by Valent Biosciences Corporation, 870 Technology Way, Libertyville, IL 60048. The petition requested that 40 CFR 180.1281 be amended by establishing a permanent exemption from the requirement of a tolerance for residues of S-Abscisic Acid, (S)-5-(1-hydroxy-2,6,6-trimethyl-4-oxo-1-cyclohex-2-enyl)-3-methyl-penta-(2Z,4E)-dienoic Acid (hereafter referred to as ABA). This notice stated that a summary of the petition prepared by the petitioner Valent Biosciences Corporation could be found in the docket for this action, which is available to the public in the docket,http://www.regulations.gov. There were no substantive comments received in response to the notice of filing. Currently, there is a two-part temporary exemption from the requirement of a tolerance for residues of ABA. ABA is exempt from the requirement of a tolerance when used on grapes in accordance with Experimental Use permit 73049-EUP-4, which expires on October 1, 2010; and ABA is exempt when used on grapes, herbs and spices, leafy vegetables, pineapple, pome fruit and stone fruit in accordance with Experimental Use permit 73049-EUP-7, which expires on August 7, 2012. Valent Biosciences Corporation requested an amendment of this two-part temporary exemption to a permanent exemption in or on all food commodities.

Section 408(c)(2)(A)(i) of FFDCA allows EPA to establish an exemption from the requirement for a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the exemption is “safe.” Section 408(c)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Pursuant to section 408(c)(2)(B) of FFDCA, in establishing or maintaining in effect an exemption from the requirement of a tolerance, EPA must take into account the factors set forth in section 408(b)(2)(C) of FFDCA, which require EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. . . .” Additionally, section 408(b)(2)(D) of FFDCA requires that the Agency consider “available information concerning the cumulative effects of a particular pesticide's residues” and “other substances that have a common mechanism of toxicity.”

EPA performs a number of analyses to determine the risks from aggregate exposure to pesticide residues. First, EPA determines the toxicity of pesticides. Second, EPA examines exposure to the pesticide through food, drinking water, and through other exposures that occur as a result of pesticide use in residential settings.

III. Toxicological Profile

Consistent with section 408(b)(2)(D) of FFDCA, EPA has reviewed the available scientific data and other relevant information in support of this action and considered its validity, completeness, and reliability and the relationship of this information to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children.

ABA is a plant regulator present in all vascular plants, algae, and some fungi. Its name derives from its purported role in abscission—the shedding of leaves, fruits, flowers, and seeds. As a plant hormone, ABA is known to be a strong actor in regulating plant growth by aiding in stress resistance, fruit set, ripening, and senescence. It is naturally present in fruits and vegetables at various levels, generally not in excess of 10 parts per million (ppm), and has always been a component of any diet containing plant materials. To date, no toxic effects to humans have been associated with the consumption of ABA in fruits and vegetables.

Summaries of the toxicological data submitted in support of this exemption from the requirement of a tolerance follows:

1.Acute toxicity. Acute toxicity studies, submitted to support the registration of the end-use product containing ABA, confirm a low toxicity profile and buttress the finding that this active ingredient poses no significant human health risk with regard to new food uses. Altogether, the acute toxicity data show virtual nontoxicity for all routes of exposure and suggest that any dietary risks associated with this naturally occurring plant regulator would be negligible.

i. The acute oral median lethal dose (LD50) in rats was greater than 5,000 milligrams per kilogram (mg/kg) and confirmed negligible toxicity through the oral route. There were no observed toxicological effects on the test subjects in the acute oral study submitted (Master Record Identification Number MRID No. 46895611). ABA is Toxicity Category IV for acute oral toxicity.

ii. The acute dermal LD50in rats was greater than 5,000 mg/kg. These data substantiated ABA's relative dermal nontoxicity to the general public (MRIDNo. 46895612). ABA is Toxicity Category IV for acute dermal toxicity.

iv. A skin irritation study on rabbits indicated that ABA was not irritating to the skin (MRID No. 46895615). ABA is Toxicity Category IV for dermal irritation.

v. Data indicated ABA is not a dermal sensitizer (MRID No. 46895616). Data indicate that ABA is not acutely toxic. No toxic endpoints were established, and no significant toxicological effects were observed in any of the acute toxicity studies.

2.Mutagenicity. Three mutagenicity studies, using ABA as the test substance, were performed. These studies are sufficient to confirm that there are no expected dietary or non-occupational risks of mutagenicity with regard to new food uses.

i. The Reverse Mutation Assay (MRID No. 47030901) showed that ABA did not induce mutant colonies relative to control groups.

iii. A Bone Marrow Micronucleus Assay (MRID No. 47005301) indicated no mutagenicity in the bone marrow cells of mice up to the limit dose of 2,000 mg/kg.

3.Subchronic toxicity. Based on its biodegradation properties, residues of ABA are not expected to result in significant dietary exposure beyond the levels expected in background dietary exposures. Nonetheless, two subchronic oral toxicity studies satisfied the data requirements for subchronic toxicity and indicated that ABA has no subchronic toxicological effect.

ii. A 90-day Oral Toxicity Study (MRID No. 47470510) found no statistical difference in hematology, clinical chemistry, or urinalysis between test subjects and the control. The NOAEL was determined to be 20,000 mg/kg/day.

4.Developmental toxicity. The data submitted to the Agency (MRID No. 47470511) demonstrate a clear lack of developmental toxicity and support the Agency's conclusion that there is no risk of developmental toxicity associated with new food uses. Data submitted to the Agency satisfy the data requirements for developmental toxicity and indicate that ABA poses negligible risk with regard to developmental toxicity.

A Prenatal Developmental Toxicity Study (MRID No. 47470512) found no significant treatment-related reproductive effects or fetal abnormalities and established a NOAEL of 1,000 mg/kg/day.

5.Effects on endocrine systems. There is no available evidence demonstrating that ABA is an endocrine disruptor in humans. As a result, the Agency is not requiring information on the endocrine effects of ABA at this time. However, the Endocrine Disruption Screening Program (EDSP) has established a protocol, which guides the Agency in selecting suspect ingredients for review, and the Agency reserves the right to require new information should the program require it. Presently, based on the lack of exposure and the negligible toxicity profile of ABA, no adverse effects to the endocrine are known or expected. Overall, the lack of evidence of endocrine disruption is consistent with ABA's low toxicity profile and supports this exemption from the requirement of a tolerance.

IV. Aggregate Exposures

In examining aggregate exposure, section 408 of FFDCA directs EPA to consider available information concerning exposures from the pesticide residue in food and all other non-occupational exposures, including drinking water from ground water or surface water and exposure through pesticide use in gardens, lawns, or buildings (residential and other indoor uses).

A. Dietary Exposure

ABA is a plant regulator present in all vascular plants, algae, and some fungi. It is naturally present in fruits and vegetables at various levels, generally not in excess of 10 ppm, and has always been a component of any diet containing plant materials. Because of the rapid degradation of ABA, the proposed preharvest uses of this active ingredient are not expected to result in dietary residues in or on food above the natural background levels. Even in a worst-case scenario, exposure to ABA residues would not be expected to exceed exposures expected in a vegetarian diet.

1.Food. Residues of ABA applied to food crops are expected to dissipate to background levels before they are distributed for consumption. Data submitted by the registrant confirm ABA's rapid dissipation through metabolization, photo-isomerization, and degradation (MRID No. 47131404). Data demonstrate that ABA residues on grape leaves are 95% degraded within 24 hours of application. Moreover, confirmatory data on the degradation of ABA on wheat leaves show a half-life ranging between 5 and 8 hours. Given ABA's preharvest application and rapid degradation, no significant residues are expected. Even in the unlikely event of dietary exposure to ABA residues, it is noted that ABA is naturally present in fruits and vegetables at various levels up to 10 ppm and has always been a component of any diet containing plant materials. No toxicological hazard has historically been associated with its consumption. In sum, while little to no dietary exposure from use of ABA as a pesticide is expected, dietary exposures would not be expected to pose any quantifiable risk, due to ABA's nontoxic profile as described in Unit III.

2.Drinking water exposure. Applications of ABA are made directly to terrestrial crops. Accordingly, no aquatic exposures are expected. While ABA residues might runoff after application, they are not expected to be able to reach surface water or to percolate through the soil to ground water because of the rapid biodegradation of ABA and the rapid metabolization of ABA by soil microbes (MRID No. 47131404). Modeling of estimated environmental concentrations (EECs) in water indicate that maximum residues in water resulting from an incidental offsite movement of ABA would not exceed the low parts per billion level - an amount that is indistinguishable from the natural level of ABA already found in our water. (Notably, the highest potential EECs in water are many orders of magnitude below the amounts that would be commonly found in a typical serving of fruit and vegetables.) In sum, the Agency concludes that any residues resulting from the application of ABA to crops are not expected to result in any significant drinking water exposure and that any incidental residues resulting from a drift or run-off event would be so negligible that they would not pose any quantifiable risk.

B. Other Non-Occupational Exposure

Non-occupational exposure is not expected because ABA is not approved for residential uses. The active ingredient is applied directly to food commodities and degrades rapidly. Furthermore, the Agency notes that health risks are not expected from any pesticidal exposure to this active ingredient, no matter the circumstances. A December 2009 Agency risk assessment of ABA clearly establishes that even prolonged and regular occupational exposures, which are associated with this active ingredient, pose negligible risks. In the event of incidental non-occupational exposure, no risks are expected due to ABA's low toxicity profile, nontoxic mode of action, and demonstrable lack of dietary effects.

1.Dermal exposure. Non-occupational dermal exposures to ABA are expected to be negligible because of its directed agricultural use. In the event of dermal exposure to residues, the nontoxic profile of ABA (as described in Unit III.) is not expected to result in any risks through this route of exposure.

2.Inhalation exposure. Non-occupational inhalation exposures are not expected to result from the agricultural uses of ABA. Any inhalation exposure associated with this new agricultural use pattern is expected to be occupational in nature.

V. Cumulative Effects from Substances with a Common Mechanism of Toxicity

Section 408(b)(2)(D)(v) of FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.”

EPA has not found S-Abscisic Acid to share a common mechanism of toxicity with any other substances, and S-Abscisic Acid does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has assumed that S-Abscisic Acid does not have a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's website athttp://www.epa.gov/pesticides/cumulative.

VI. Determination of Safety for U.S. Population, Infants and Children

Health risks to humans, including infants and children, are considered negligible with regard to the pesticidal use of ABA. As illustrated in Unit III., acute toxicity studies indicate that ABA has negligible toxicity. Furthermore, it is ubiquitous in nature and present in all fruits and vegetables. To date, there is no history of toxicological incident involving its consumption. Of equal note, little to no exposure to the residues of ABA is expected. Pesticidal applications are applied directly to agricultural crops, and data suggest that significant residues are not expected beyond the time of harvest. Accordingly, little to no dietary exposure is expected. As such, the Agency has determined that this food use of ABA poses no foreseeable risks to human health or the environment. Thus, there is a reasonable certainty of no harm to the general U.S. population, including infants and children, from exposure to this active ingredient.

1.U.S. population. The Agency has determined that there is a reasonable certainty that no harm will result from aggregate exposure to residues of ABA to the U.S. population. This includes all anticipated dietary exposures and other non-occupational exposures for which there is reliable information. The Agency arrived at this conclusion based on the low levels of mammalian dietary toxicity associated with ABA, the natural ubiquity of ABA in foodstuffs, and information suggesting that the pesticidal use of ABA will not result in any significant exposure. For these reasons, the Agency has determined that ABA residues in and on all food commodities will be safe, and that there is a reasonable certainty that no harm will result from aggregate exposure to residues of ABA.

2.Infants and children. Section 408(b)(2)(C) of FFDCA provides that EPA shall assess the available information about consumption patterns among infants and children, special susceptibility of infants and children to pesticide chemical residues, and the cumulative effects on infants and children of the residues and other substances with a common mechanism of toxicity. In addition, section 408(b)(2)(C) of FFDCA provides that EPA shall apply an additional tenfold margin of exposure (safety) for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the database unless the EPA determines that a different margin of exposure (safety) will be safe for infants and children. Margins of exposure (safety), which are often referred to as uncertainty factors, are incorporated into EPA risk assessments either directly or through the use of a margin of exposure analysis, or by using uncertainty (safety) factors in calculating a dose level that poses no appreciable risk. Based on all the information evaluated for ABA, the Agency concludes that there are no threshold effects of concern and, as a result, the provision requiring an additional margin of safety does not apply. Further, the considerations of consumption patterns, special susceptibility, and cumulative effects do not apply to pesticides, such as ABA, without a demonstrated significant adverse effect.

VII. Other ConsiderationsA. Analytical Enforcement Methodology

Through this action, the Agency proposes an exemption from the requirement of a tolerance of ABA when used on all food commodities without any numerical limitations for residues. EPA has determined that residues resulting from the pesticidal uses of ABA would be so low as to be virtually indistinguishable from natural background levels. As a result, the Agency has concluded that an analytical method is not required for enforcement purposes for ABA.

B. International Residue Limits

There are no codex maximum residue levels established for residues of ABA.

VIII. Conclusions

Based on the data submitted to support this tolerance exemption, and other information available to the Agency, EPA is amending the current temporary exemption from the tolerance requirements, pursuant to section 408(c) of FFDCA, to be a permanent exemption from the requirement for a tolerance for residues of ABA in or on all food commodities when applied pre-harvest as a plant regulator.

IX. Statutory and Executive Order Reviews

This final rule establishes a tolerance under section 408(d) of FFDCA in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitledRegulatory Planning and Review(58 FR 51735, October 4, 1993). Because this final rule has been exempted from review under Executive Order 12866, this final rule is not subject to Executive Order 13211, entitledActions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use(66 FR 28355, May 22, 2001) or Executive Order 13045, entitledProtection of Children from Environmental Health Risks and SafetyRisks(62 FR 19885, April 23, 1997). This final rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501et seq., nor does it require any special considerations under Executive Order 12898, entitledFederal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations(59 FR 7629, February 16, 1994).

Since tolerances and exemptions that are established on the basis of a petition under section 408(d) of FFDCA, such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601et seq.) do not apply.

This final rule directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of section 408(n)(4) of FFDCA. As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitledFederalism(64 FR 43255, August 10, 1999) and Executive Order 13175, entitledConsultation and Coordination with Indian Tribal Governments(65 FR 67249, November 9, 2000) do not apply to this final rule. In addition, this final rule does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Public Law 104-4).

This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note).

X. Congressional Review Act

The Congressional Review Act, 5 U.S.C. 801et seq., generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of this final rule in theFederal Register. This final rule is not a “major rule” as defined by 5 U.S.C. 804(2).

Dated: February 25, 2010.Steven Bradbury,Acting Director, Office of Pesticide Programs.Therefore, 40 CFR chapter I is amended as follows:PART 180—[AMENDED]1. The authority citation for part 180 continues to read as follows:Authority:

21 U.S.C. 321(q), 346a and 371.

2. In subpart D, revise § 180.1281 to read as follows:§ 180.1281S-Abscisic Acid, (S)-5-(1-hydroxy-2,6,6-trimethyl-4-oxo-1-cyclohex-2-enyl)-3-methyl-penta-(2Z,4E)-dienoic Acid; exemption from the requirement of a tolerance.

An exemption from the requirement of a tolerance is established for residues of S-Abscisic Acid in or on all food commodities when applied or used preharvest as a plant regulator.

Modified Base (1% annual-chance) Flood Elevations (BFEs) are finalized for the communities listed below. These modified BFEs will be used to calculate flood insurance premium rates for new buildings and their contents.

DATES:

The effective dates for these modified BFEs are indicated on the following table and revise the Flood Insurance Rate Maps (FIRMs) in effect for the listed communities prior to this date.

ADDRESSES:

The modified BFEs for each community are available for inspection at the office of the Chief Executive Officer of each community. The respective addresses are listed in the table below.

The Federal Emergency Management Agency (FEMA) makes the final determinations listed below for the modified BFEs for each community listed. These modified BFEs have been published in newspapers of local circulation and ninety (90) days have elapsed since that publication. The Deputy Federal Insurance and Mitigation Administrator has resolved any appeals resulting from this notification.

The modified BFEs are not listed for each community in this notice. However, this final rule includes the address of the Chief Executive Officer of the community where the modified BFE determinations are available for inspection.

The modified BFEs are made pursuant to section 206 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance with the National Flood Insurance Act of 1968, 42 U.S.C. 4001et seq.,and with 44 CFR part 65.

For rating purposes, the currently effective community number is shown and must be used for all new policies and renewals.

The modified BFEs are the basis for the floodplain management measures that the community is required either to adopt or to show evidence of being already in effect in order to qualify or to remain qualified for participation in the National Flood Insurance Program (NFIP).

These modified BFEs, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own or pursuant to policies established by other Federal, State, or regional entities.

These modified BFEs also are used to meet the floodplain managementrequirements of the NFIP and are also used to calculate the appropriate flood insurance premium rates for new buildings built after these elevations are made final, and for the contents in these buildings. The changes in BFEs are in accordance with 44 CFR 65.4.

National Environmental Policy Act.This final rule is categorically excluded from the requirements of 44 CFR part 10, Environmental Consideration. An environmental impact assessment has not been prepared.

Regulatory Flexibility Act.As flood elevation determinations are not within the scope of the Regulatory Flexibility Act, 5 U.S.C. 601-612, a regulatory flexibility analysis is not required.

Regulatory Classification.This final rule is not a significant regulatory action under the criteria of section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735.

Executive Order 13132, Federalism.This final rule involves no policies that have federalism implications under Executive Order 13132, Federalism.

Executive Order 12988, Civil Justice Reform.This final rule meets the applicable standards of Executive Order 12988.

National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

ACTION:

Temporary rule; closure.

SUMMARY:

NMFS is prohibiting directed fishing for pollock in Statistical Area 630 in the Gulf of Alaska (GOA). This action is necessary to prevent exceeding the B season allowance of the 2010 total allowable catch (TAC) of pollock for Statistical Area 630 in the GOA.

NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.

The B season allowance of the 2010 TAC of pollock in Statistical Area 630 of the GOA is 2,891 metric tons (mt) as established by the final 2009 and 2010 harvest specifications for groundfish of the GOA (74 FR 7333, February 1, 2009) and inseason adjustment (74 FR 68713, December 29, 2009).

In accordance with § 679.20(d)(1)(i), the Regional Administrator has determined that the B season allowance of the 2010 TAC of pollock in Statistical Area 630 of the GOA will soon be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 2,841 mt, and is setting aside the remaining 50 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance has been reached. Consequently, NMFS is prohibiting directed fishing for pollock in Statistical Area 630 of the GOA.

After the effective date of this closure the maximum retainable amounts at § 679.20(e) and (f) apply at any time during a trip.

Classification

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the closure of pollock in Statistical Area 630 of the GOA. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of March 8, 2010.

The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.

This action is required by § 679.20 and is exempt from review under Executive Order 12866.

National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

ACTION:

Final rule; closures.

SUMMARY:

NMFS announces final 2010 and 2011 harvest specifications, apportionments, and Pacific halibut prohibited species catch limits for the groundfish fishery of the Gulf of Alaska (GOA). This action is necessary to establish harvest limits for groundfish during the 2010 and 2011 fishing years and to accomplish the goals and objectives of the Fishery Management Plan (FMP) for Groundfish of the GOA. The intended effect of this action is to conserve and manage the groundfish resources in the GOA in accordance with the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).

DATES:

Effective at 1200 hrs, Alaska local time (A.l.t.), March 12, 2010, through 2400 hrs, A.l.t., December 31, 2011.

ADDRESSES:

Electronic copies of the Final Alaska Groundfish Harvest Specifications Environmental Impact Statement (EIS), Record of Decision (ROD), Supplementary Information Report (SIR) to the EIS, and Final Regulatory Flexibility Analysis (FRFA) prepared for this action are available fromhttp://alaskafisheries.noaa.gov.The final 2009 Stock Assessment and Fishery Evaluation (SAFE) report for the groundfish resources of the GOA, dated November 2009, is available from the North Pacific Fishery Management Council's (the Council) Web site athttp://alaskafisheries.noaa.gov/npfmc.

FOR FURTHER INFORMATION CONTACT:

Tom Pearson, 907-481-1780, or Obren Davis, 907-586-7228.

SUPPLEMENTARY INFORMATION:

NMFS manages the GOA groundfish fisheries in the exclusive economic zone (EEZ) of the GOA under the FMP. The Council prepared the FMP under the authority of the Magnuson-Stevens Act, 16 U.S.C. 1801et seq.Regulations governing U.S.fisheries and implementing the FMP appear at 50 CFR parts 600, 679, and 680.

The FMP and its implementing regulations require NMFS, after consultation with the Council, to specify the total allowable catch (TAC) for each target species and for the “other species” category, the sum of which must be within the optimum yield (OY) range of 116,000 to 800,000 metric tons (mt). Section 679.20(c)(1) further requires NMFS to publish and solicit public comment on proposed annual TACs, halibut prohibited species catch (PSC) amounts, and seasonal allowances of pollock and inshore/offshore Pacific cod. Upon consideration of public comment received under § 679.20(c)(1), NMFS must publish notice of final specifications for up to two fishing years as annual target and “other species” TAC, per § 679.20(c)(3)(ii). The final specifications set forth in Tables 1 through 28 of this document reflect the outcome of this process, as required at 679.20(c).

The proposed 2010 and 2011 harvest specifications for groundfish of the GOA and Pacific halibut PSC allowances were published in theFederal Registeron November 30, 2009 (74 FR 62533). Comments were invited and accepted through December 30, 2009. NMFS received three letters of comment on the proposed specifications. The comments are summarized in the Response to Comments section of this action. In December 2009, NMFS consulted with the Council regarding the 2010 and 2011 harvest specifications. After considering public comments received, as well as biological and economic data that were available at the Council's December 2009 meeting, NMFS is implementing the final 2010 and 2011 harvest specifications, as recommended by the Council. For 2010, the sum of the TAC amounts is 292,087 mt. For 2011, the sum of the TAC amounts is 328,464 mt.

Acceptable Biological Catch (ABC) and TAC Specifications

In December 2009, the Council, its Advisory Panel (AP), and its Scientific and Statistical Committee (SSC), reviewed current biological and harvest information about the condition of groundfish stocks in the GOA. This information was compiled by the Council's GOA Plan Team and was presented in the final 2009 SAFE report for the GOA groundfish fisheries, dated November 2009 (seeADDRESSES). The SAFE report contains a review of the latest scientific analyses and estimates of each species' biomass and other biological parameters, as well as summaries of the available information on the GOA ecosystem and the economic condition of the groundfish fisheries off Alaska. From these data and analyses, the Plan Team estimates an ABC for each species or species category.

The final ABCs and TACs are based on the best available biological and socioeconomic information, including projected biomass trends, information on assumed distribution of stock biomass, and revised methods used to calculate stock biomass. The FMP specifies the formulas, or tiers, to be used to compute ABCs and overfishing levels (OFLs). The formulas applicable to a particular stock or stock complex are determined by the level of reliable information available to fisheries scientists. This information is categorized into a successive series of six tiers to define OFL and ABC amounts, with tier one representing the highest level of information quality available and tier six representing the lowest level of information quality available. The SSC adopted the final 2010 and 2011 OFLs and ABCs recommended by the Plan Team for all groundfish species.

The final TAC recommendations were based on the ABCs as adjusted for other biological and socioeconomic considerations, including maintaining the sum of all TACs within the required OY range of 116,000 to 800,000 mt. The Council adopted the SSC's OFL and ABC recommendations and the AP's TAC recommendations. The Council recommended TACs for 2010 and 2011 that are equal to ABCs for pollock, deep-water flatfish, rex sole, sablefish, Pacific ocean perch, shortraker rockfish, rougheye rockfish, northern rockfish, pelagic shelf rockfish, thornyhead rockfish, demersal shelf rockfish, big skate, longnose skate, and other skates. The Council recommended TACs for 2010 and 2011 that are less than the ABCs for Pacific cod, flathead sole, shallow-water flatfish, arrowtooth flounder, other rockfish, Atka mackerel, and “other species.” None of the Council's recommended TACs for 2010 and 2011 exceed the final ABC for any species or species category. The 2010 and 2011 harvest specifications approved by the Secretary of Commerce (Secretary) are unchanged from those recommended by the Council and are consistent with the preferred harvest strategy alternative in the EIS (seeADDRESSES). NMFS finds that the Council's recommended OFLs, ABCs, and TACs are consistent with the biological condition of the groundfish stocks as described in the 2009 SAFE report and approved by the Council. NMFS also finds that the Council's recommendations for OFLs, ABCs, and TACs are consistent with the biological condition of groundfish stocks as adjusted for other biological and socioeconomic considerations, including maintaining the total TAC within the OY range. NMFS reviewed the Council's recommended TAC specifications and apportionments and approves these specifications under 50 CFR 679.20(c)(3)(ii). The apportionment of TAC amounts among gear types, processing sectors, and seasons is discussed below.

Tables 1 and 2 list the final 2010 and 2011 OFLs, ABCs, TACs, and area apportionments of groundfish in the GOA. The sums of the 2010 and 2011 ABCs are 565,499 mt and 605,086 mt, respectively, which are higher in 2010 and 2011 than the 2009 ABC sum of 516,055 mt (74 FR 7333, February 17, 2009).

Specification and Apportionment of TAC Amounts

As in prior years, the SSC and Council recommended that the method of apportioning the sablefish ABC among management areas in 2010 and 2011 include commercial fishery and survey data. NMFS stock assessment scientists believe the use of unbiased commercial fishery data reflecting catch-per-unit-effort provides rational input for stock distribution assessments. NMFS annually evaluates the use of commercial fishery data to ensure unbiased information is included in stock distribution models. The Council's recommendation for sablefish area apportionments also takes into account the prohibition on the use of trawl gear in the Southeast Outside (SEO) District of the Eastern Regulatory Area and makes available five percent of the combined Eastern Regulatory Area ABCs to trawl gear for use as incidental catch in other directed groundfish fisheries in the West Yakutat (WYK) District (§ 679.20(a)(4)(i)).

Since the inception of a State of Alaska (State) managed pollock fishery in Prince William Sound (PWS), the GOA Plan Team has recommended the guideline harvest level (GHL) for the pollock fishery in PWS be deducted from the ABC for the western stock of pollock in the GOA in the Western/Central/West Yakutat (W/C/WYK) Area. For the 2010 and 2011 pollock fisheries in PWS, the State's GHL is 1,650 mt.

The apportionment of annual pollock TAC among the Western and Central Regulatory Areas of the GOA reflects the seasonal biomass distribution and is discussed in greater detail below. The annual pollock TAC in the Western and Central Regulatory Areas of the GOA isapportioned among Statistical Areas 610, 620, and 630, as well as equally among each of the following four seasons: The A season (January 20 through March 10), the B season (March 10 through May 31), the C season (August 25 through October 1), and the D season (October 1 through November 1) (50 CFR 679.23(d)(2)(i) through (iv) and 679.20(a)(5)(iv)(A), (B)).

The SSC, AP, and Council recommended apportionment of the ABC for Pacific cod in the GOA among regulatory areas based on the three most recent NMFS summer trawl surveys. The 2010 and 2011 Pacific cod TACs are affected by the State's fishery for Pacific cod in State waters in the Central and Western Regulatory Areas, as well as in PWS. The Plan Team, SSC, AP, and Council recommended that the sum of all State and Federal water Pacific cod removals from the GOA not exceed ABC recommendations. Accordingly, the Council recommended reducing the 2010 and 2011 Pacific cod TACs from the ABCs in the Central and Western Regulatory Areas to account for State GHLs. Therefore, the 2010 Pacific cod TACs are less than the ABCs by the following amounts: (1) Eastern GOA, 356 mt; (2) Central GOA, 12,260 mt; and (3) Western GOA, 6,921 mt. The 2011 Pacific cod TACs are less than the ABCs by the following amounts: (1) Eastern GOA, 441 mt; (2) Central GOA, 15,174 mt; and (3) Western GOA, 8,566 mt. These amounts reflect the sum of the State's 2010 and 2011 GHLs in these areas, which are 15 percent, 25 percent, and 25 percent of the Eastern, Central, and Western GOA ABCs, respectively. The percentage of the ABC used to calculate the 2010 and 2011 GHL for the State-managed Pacific cod fishery in PWS fisheries has been increased from 10 percent in 2009 to 15 percent of the Eastern GOA ABC in 2010 and 2011.

NMFS establishes seasonal apportionments of the annual Pacific cod TAC in the Western and Central Regulatory Areas. Sixty percent of the annual TAC is apportioned to the A season for hook-and-line, pot, and jig gear from January 1 through June 10, and for trawl gear from January 20 through June 10. Forty percent of the annual TAC is apportioned to the B season for hook-and-line, pot, and jig gear from September 1 through December 31, and for trawl gear from September 1 through November 1 (§§ 679.23(d)(3) and 679.20(a)(12)).

NMFS establishes—for 2010 and 2011—an A season directed fishing allowance (DFA) for the Pacific cod fisheries in the GOA based on the management area TACs minus the recent average A season incidental catch of Pacific cod in each management area before June 10 (§ 679.20(d)(1)). The DFA and incidental catch before June 10 will be managed such that total harvest in the A season will be no more than 60 percent of the annual TAC. Incidental catch taken after June 10 will continue to accrue against the B season TAC. This action meets the intent of the Steller sea lion protection measures by achieving temporal dispersion of the Pacific cod removals and by reducing the likelihood of harvest exceeding 60 percent of the annual TAC in the A season.

Other Actions Affecting the 2010 and 2011 Harvest Specifications

The Council is developing an amendment to the FMP to comply with Magnuson-Stevens Act requirements associated with annual catch limits and accountability measures. That amendment may result in revisions to how total annual groundfish mortality is estimated and accounted for in the annual SAFE reports, which in turn may affect the OFLs and ABCs for certain groundfish species. NMFS will attempt to identify additional sources of mortality to groundfish stocks not currently reported or considered by the groundfish stock assessments in recommending OFL, ABC, and TAC for certain groundfish species. These changes would not be in effect until 2011, and could affect the 2011 OFLs, ABCs, and TACs contained in this action.

In October 2008, the Council adopted Amendment 34 to the Fishery Management Plan for Bering Sea/Aleutian Islands King and Tanner Crabs. Amendment 34 would amend the Bering Sea and Aleutian Islands Crab Rationalization Program (Crab Rationalization Program) to exempt additional fishery participants from harvest limits, called sideboards, which apply to some vessels and license limitation program (LLP) licenses that are used to participate in GOA Pacific cod and pollock fisheries. These particular sideboards are discussed under the subsequent section titled “Non-AFA Crab Vessel Groundfish Harvest Limitations.” Tables 19 and 20 specify the 2010 and 2011 sideboard amounts. If the Secretary approves Amendment 34, NMFS would revise the sideboard amounts specified in Tables 19 and 20.

Changes From the Proposed 2010 and 2011 Harvest Specifications in the GOA

In October 2009, the Council's recommendations for the proposed 2010 and 2011 harvest specifications (74 FR 62533, November 30, 2009) were based largely upon information contained in the final 2008 SAFE report for the GOA groundfish fisheries, dated November 2008 (seeADDRESSES). The Council proposed that the OFLs, ABCs, and TACs established for the groundfish fisheries in 2009 (74 FR 7333, February 17, 2009, see Table 2) be rolled over to 2010 and 2011, pending completion and review of the 2009 SAFE report at its December 2009 meeting.

The 2009 SAFE report, which was not available when the Council made its recommendations in October 2009, contains the best and most recent scientific information on the condition of the groundfish stocks. The Council considered this report in December 2009 when it made recommendations for the final 2010 and 2011 harvest specifications. The Council's final 2010 and 2011 TAC recommendations increase fishing opportunities for species for which the Council had sufficient information to raise TAC levels. Conversely, the Council reduced TAC levels to provide greater protection for some species. Based on the final 2009 SAFE report, the sum of the 2010 final TACs for the GOA (292,087 mt) is 7,399 mt higher than the sum of the proposed 2010 TACs (284,688 mt). The largest 2010 increases occurred for pollock, from 74,330 mt to 84,745 mt (14 percent increase); for rex sole, from 8,827 mt to 9,729 mt (10 percent increase); for Pacific ocean perch, from 15,098 mt to 17,584 mt (16 percent increase); for northern rockfish, from 4,173 mt to 5,098 mt (22 percent increase); and for pelagic shelf rockfish, from 4,465 mt to 5,059 mt (13 percent increase). The largest decreases occurred for deep-water flatfish, from 9,793 mt to 6,190 mt (37 percent decrease); for shallow-water flatfish, from 22,256 mt to 20,062 mt (10 percent decrease); for flathead sole, from 11,289 mt to 10,441 mt (8 percent decrease); for other rockfish, from 1,730 mt to 1,192 mt (31 percent decrease); for thornyhead rockfish, from 1,910 mt to 1,770 mt (7 percent decrease); and for demersal shelf rockfish, from 362 mt to 295 mt (18 percent decrease). The sum of the final 2011 TACs for the GOA (328,464 mt) is 43,776 mt higher than the sum of the proposed 2011 TACs (284,688 mt). The largest 2011 increases occurred for pollock, Pacific cod, rex sole, Pacific ocean perch, northern rockfish, and pelagic shelf rockfish. Concurrently, decreases occurred for sablefish, deep-water flatfish, shallow-water flatfish, flathead sole, other rockfish, demersal shelf rockfish, and thornyhead rockfish. Other increases or decreases in 2010 and 2011 are within 2 percent of the proposed specifications.

The changes in the final rule from the proposed rule are based on the most recent scientific information and implement the harvest strategy described in the proposed rule for the harvest specifications. Tables 1 and 2 list the 2010 and 2011, respectively, final OFL, ABC, and TAC amounts for GOA groundfish.

Table 1—Final 2010 ABCs, TACs, and OFLs of Groundfish for the Western/Central/West Yakutat (W/C/WYK), Western (W), Central (C), Eastern (E) Regulatory Areas, and in the West Yakutat (WYK), Southeast Outside (SEO) and Gulfwide (GW) Districts of the Gulf of Alaska (GOA)[Values are rounded to the nearest metric ton]SpeciesArea1ABCTACOFLPollock2Shumagin (610)26,25626,256n/aChirikof (620)28,09528,095n/aKodiak (630)19,11819,118n/aWYK (640)2,0312,031n/aW/C/WYK (subtotal)75,50075,500103,210SEO (650)9,2459,24512,326Total84,74584,745115,536Pacific cod3W27,68520,764n/aC49,04236,782n/aE2,3732,017n/aTotal79,10059,56394,100Sablefish4W1,6601,660n/aC4,5104,510n/aWYK1,6201,620n/aSEO2,5802,580n/aE (WYK and SEO) (subtotal)4,2004,200n/aTotal10,37010,37012,270Deep-water flatfish5W521521n/aC2,8652,865n/aWYK2,0442,044n/aSEO760760n/aTotal6,1906,1907,680Shallow-water flatfish6W23,6814,500n/aC29,99913,000n/aWYK1,2281,228n/aSEO1,3341,334n/aTotal56,24220,06267,768Rex soleW1,5431,543n/aC6,4036,403n/aWYK883883n/aSEO900900n/aTotal9,7299,72912,714Arrowtooth flounderW34,7738,000n/aC146,40730,000n/aWYK22,8352,500n/aSEO11,8672,500n/aTotal215,88243,000254,271Flathead soleW16,8572,000n/aC27,1245,000n/aWYK1,9901,990n/aSEO1,4511,451n/aTotal47,42210,41159,295Pacific ocean perch7W2,8952,8953,332C10,73710,73712,361WYK2,0042,004n/aSEO1,9481,948n/aE (WYK and SEO) (subtotal)3,9523,9524,550Total17,58417,58420,243Northern rockfish89W2,7032,703n/aC2,3952,395n/aE00n/aTotal5,0985,0986,070Rougheye rockfish10W8080n/aC862862n/aE360360n/aTotal1,3021,3021,568Shortraker rockfish11W134134n/aC325325n/aE455455n/aTotal9149141,219Other rockfish912W212212n/aC507507n/aWYK273273n/aSEO2,757200n/aTotal3,7491,1924,881Pelagic shelf rockfish13W650650n/aC3,2493,249n/aWYK434434n/aSEO726726n/aTotal5,0595,0596,142Demersal shelf rockfish14SEO295295472Thornyhead rockfishW425425n/aC637637n/aE708708n/aTotal1,7701,7702,360Atka mackerelGW4,7002,0006,200Big skate15W598598n/aC2,0492,049n/aE681681n/aTotal3,3283,3284,438Longnose skate16W8181n/aC2,0092,009n/aE762762n/aTotal2,8522,8523,803Other skates17GW2,0932,0932,791Other species18GW7,0754,5009,432Total565,499292,087693,2531Regulatory areas and districts are defined at § 679.2.2Pollock is apportioned in the Western/Central Regulatory Areas among three statistical areas. During the A season, the apportionment is based on an adjusted estimate of the relative distribution of pollock biomass of approximately 30 percent, 46 percent, and 24 percent in Statistical Areas 610, 620, and 630, respectively. During the B season, the apportionment is based on the relative distribution of pollock biomass at 30 percent, 54 percent, and 16 percent in Statistical Areas 610, 620, and 630, respectively. During the C and D seasons, the apportionment is based on the relative distribution of pollock biomass at 41 percent, 27 percent, and 32 percent in Statistical Areas 610, 620, and 630, respectively. Tables 5 and 6 list the proposed 2010 and 2011 pollock seasonal apportionments. In the West Yakutat and Southeast Outside Districts of the Eastern Regulatory Area, pollock is not divided into seasonal allowances.3The annual Pacific cod TAC is apportioned 60 percent to the A season and 40 percent to the B season in the Western and Central Regulatory Areas of the GOA. Pacific cod is allocated 90 percent for processing by the inshore component and 10 percent for processing by the offshore component. Table 7 and 8 list the proposed 2010 and 2011 Pacific cod seasonal apportionments.4Sablefish is allocated to trawl and hook-and-line gears for 2010 and to trawl gear in 2011. Tables 3 and 4 list the proposed 2010 and 2011 sablefish TACs.5“Deep-water flatfish” means Dover sole, Greenland turbot, and deepsea sole.6“Shallow-water flatfish” means flatfish not including “deep-water flatfish,” flathead sole, rex sole, or arrowtooth flounder.7“Pacific ocean perch” meansSebastes alutus.8“Northern rockfish” meansSebastes polyspinous.For management purposes the 2 mt apportionment of ABC to the Eastern GOA has been included in the slope rockfish complex.9“Slope rockfish” meansSebastes aurora(aurora),S. melanostomus(blackgill),S. paucispinis(bocaccio),S. goodei(chilipepper),S. crameri(darkblotch),S. elongatus(greenstriped),S. variegatus(harlequin),S. wilsoni(pygmy),S. babcocki(redbanded),S. proriger(redstripe),S. zacentrus(sharpchin),S. jordani(shortbelly),S. brevispinis(silvergrey),S. diploproa(splitnose),S. saxicola(stripetail),S. miniatus(vermilion), andS. reedi(yellowmouth). In the Eastern GOA only, slope rockfish also includes northern rockfish,S. polyspinous.10“Rougheye rockfish” meansSebastes aleutianus(rougheye) andSebastes melanostictus(blackspotted).11“Shortraker rockfish” meansSebastes borealis.12“Other rockfish” in the Western and Central Regulatory Areas and in the WYK District means slope rockfish and demersal shelf rockfish. The category “other rockfish” in the SEO District means slope rockfish.13“Pelagic shelf rockfish” meansSebastes ciliatus(dark),S. variabilis(dusky),S. entomelas(widow), andS. flavidus(yellowtail).14“Demersal shelf rockfish” meansSebastes pinniger(canary),S. nebulosus(china),S. caurinus(copper),S. maliger(quillback),S. helvomaculatus(rosethorn),S. nigrocinctus(tiger), andS. ruberrimus(yelloweye).15“Big skate” meansRaja binoculata.16“Longnose skate” meansRaja rhina.17“Other skates” meansBathyraja spp.18“Other species” means sculpins, sharks, squid, and octopus.Table 2—Final 2011 ABCs, TACs, and OFLs of Groundfish for the Western/Central/West Yakutat (W/C/WYK), Western (W), Central (C), Eastern (E) Regulatory Areas, and in the West Yakutat (WYK), Southeast Outside (SEO) and Gulfwide (GW) Districts of the Gulf of Alaska (GOA)[Values are rounded to the nearest metric ton]SpeciesArea1ABCTACOFLPollock2Shumagin (610)34,72834,728n/aChirikof (620)37,15937,159n/aKodiak (630)25,28725,287n/aWYK (640)2,6862,686n/aW/C/WYK (subtotal)99,86099,860135,010SEO (650)9,2459,24512,326Total109,105109,105147,336Pacific cod3W34,26525,699n/aC60,69845,524n/aE2,9372,496n/aTotal97,90073,719116,700Sablefish4W1,4881,488n/aC4,0424,042n/aWYK1,4501,450n/aSEO2,3202,320n/aE (WYK and SEO) (subtotal)3,7703,770n/aTotal9,3009,30011,008Deep-water flatfish5W530530n/aC2,9282,928n/aWYK2,0892,089n/aSEO778778n/aTotal6,3256,3257,847Shallow-water flatfish6W23,6814,500n/aC29,99913,000n/aWYK1,2281,228n/aSEO1,3341,334n/aTotal56,24220,06267,768Rex soleW1,5211,521n/aC6,3126,312n/aWYK871871n/aSEO888888n/aTotal9,5929,59212,534Arrowtooth flounderW34,2638,000n/aC144,26230,000n/aWYK22,5012,500n/aSEO11,6932,500n/aTotal212,71943,000250,559Flathead soleW17,5202,000n/aC28,1905,000n/aWYK2,0682,068n/aSEO1,5081,508n/aTotal49,28610,57661,601Pacific ocean perch7W2,7972,7973,220C10,37710,37711,944WYK1,9371,937n/aSEO1,8821,882n/aE (WYK and SEO) (subtotal)3,8193,8194,396Total16,99316,99319,560Northern rockfish89W2,5492,549n/aC2,2592,259n/aE00n/aTotal4,8084,8085,730Rougheye rockfish10W8181n/aC869869n/aE363363n/aTotal1,3131,3131,581Shortraker rockfish11W134134n/aC325325n/aE455455n/aTotal9149141,219Other rockfish912W212212n/aC507507n/aWYK273273n/aSEO2,757200n/aTotal3,7491,1924,881Pelagic shelf rockfish13W607607n/aC3,0353,035n/aWYK405405n/aSEO680680n/aTotal4,7274,7275,739Demersal shelf rockfish14SEO295295472Thornyhead rockfishW425425n/aC637637n/aE708708n/aTotal1,7701,7702,360Atka mackerelGW4,7002,0006,200Big skate15W598598n/aC2,0492,049n/aE681681n/aTotal3,3283,3284,438Longnose skate16W8181n/aC2,0092,009n/aE762762n/aTotal2,8522,8523,803Other skates17GW2,0932,0932,791Other species18GW7,0754,5009,432Total605,086328,464743,5591Regulatory areas and districts are defined at § 679.2.2Pollock is apportioned in the Western/Central Regulatory Areas among three statistical areas. During the A season, the apportionment is based on an adjusted estimate of the relative distribution of pollock biomass of approximately 30 percent, 46 percent, and 24 percent in Statistical Areas 610, 620, and 630, respectively. During the B season, the apportionment is based on the relative distribution of pollock biomass at 30 percent, 54 percent, and 16 percent in Statistical Areas 610, 620, and 630, respectively. During the C and D seasons, the apportionment is based on the relative distribution of pollock biomass at 41 percent, 27 percent, and 32 percent in Statistical Areas 610, 620, and 630, respectively. Tables 5 and 6 list the proposed 2010 and 2011 pollock seasonal apportionments. In the West Yakutat and Southeast Outside Districts of the Eastern Regulatory Area, pollock is not divided into seasonal allowances.3The annual Pacific cod TAC is apportioned 60 percent to the A season and 40 percent to the B season in the Western and Central Regulatory Areas of the GOA. Pacific cod is allocated 90 percent for processing by the inshore component and 10 percent for processing by the offshore component. Tables 7 and 8 list the proposed 2010 and 2011 Pacific cod seasonal apportionments.4Sablefish is allocated to trawl and hook-and-line gears for 2010 and to trawl gear in 2011. Tables 3 and 4 list the proposed 2010 and 2011 sablefish TACs.5“Deep-water flatfish” means Dover sole, Greenland turbot, and deepsea sole.6“Shallow-water flatfish” means flatfish not including “deep-water flatfish,” flathead sole, rex sole, or arrowtooth flounder.7“Pacific ocean perch” meansSebastes alutus.8“Northern rockfish” meansSebastes polyspinous.For management purposes the 2 mt apportionment of ABC to the Eastern GOA has been included in the slope rockfish complex.9“Slope rockfish” meansSebastes aurora(aurora),S. melanostomus(blackgill),S. paucispinis(bocaccio),S. goodei(chilipepper),S. crameri(darkblotch),S. elongatus(greenstriped),S. variegatus(harlequin),S. wilsoni(pygmy),S. babcocki(redbanded),S. proriger(redstripe),S. zacentrus(sharpchin),S. jordani(shortbelly),S. brevispinis(silvergrey),S. diploproa(splitnose),S. saxicola(stripetail),S. miniatus(vermilion), andS. reedi(yellowmouth). In the Eastern GOA only, slope rockfish also includes northern rockfish,S. polyspinous.10“Rougheye rockfish” meansSebastes aleutianus(rougheye) andSebastes melanostictus(blackspotted).11“Shortraker rockfish” meansSebastes borealis.12“Other rockfish” in the Western and Central Regulatory Areas and in the WYK District means slope rockfish and demersal shelf rockfish. The category “other rockfish” in the SEO District means slope rockfish.13“Pelagic shelf rockfish” meansSebastes ciliatus(dark),S. variabilis(dusky),S. entomelas(widow), andS. flavidus(yellowtail).14“Demersal shelf rockfish” meansSebastes pinniger(canary),S. nebulosus(china),S. caurinus(copper),S. maliger(quillback),S. helvomaculatus(rosethorn),S. nigrocinctus(tiger), andS. ruberrimus(yelloweye).15“Big skate” meansRaja binoculata.16“Longnose skate” meansRaja rhina.17“Other skates” meansBathyraja spp.18“Other species” means sculpins, sharks, squid, and octopus.Apportionment of Reserves

Section 679.20(b)(2) requires 20 percent of each TAC for pollock, Pacific cod, flatfish, and the “other species” category be set aside in reserves for possible apportionment at a later date during the fishing year. In 2009, NMFS reapportioned all the reserves in the final harvest specifications. For 2010 and 2011, NMFS proposed reapportionment of all the reserves in the proposed 2010 and 2011 harvest specifications published in theFederal Registeron November 30, 2009 (74 FR 62533). NMFS received no public comments on the proposed reapportionments. For the final 2010 and 2011 harvest specifications, NMFS reapportioned, as proposed, all the reserves for pollock, Pacific cod, flatfish, and “other species.” Specifications of TAC shown in Tables 1 and 2 reflect reapportionment of reserve amounts for these species and species groups.

Allocations of the Sablefish TAC Amounts to Vessels Using Hook-and-Line and Trawl Gear

Section 679.20(a)(4)(i) and (ii) require allocations of sablefish TACs for each of the regulatory areas and districts to hook-and-line and trawl gear. In the Western and Central Regulatory Areas, 80 percent of each TAC is allocated to hook-and-line gear, and 20 percent of each TAC is allocated to trawl gear. In the Eastern Regulatory Area, 95 percent of the TAC is allocated to hook-and-line gear, and five percent is allocated to trawl gear. The trawl gear allocation in the Eastern Regulatory Area may only be used to support incidental catch of sablefish in directed fisheries for other target species (§ 679.20(a)(1)). In recognition of the trawl ban in the SEO District of the Eastern Regulatory Area, the Council recommended (and NMFS concurs with) the allocation of five percent of the combined Eastern Regulatory Area sablefish TAC to trawl gear in the WYK District and the remainder of the WYK sablefish TAC be available to vessels using hook-and-line gear. As a result, NMFS allocates 100 percent of the sablefish TAC in the SEO District to vessels using hook-and-line gear. This recommendation results in an allocation of 210 mt to trawl gear and 1,410 mt to hook-and-line gear in the WYK District in 2010, an allocation of 2,580 mt to hook-and-line gear in the SEO District in 2010, and 189 mt to trawl gear in the WYK District in 2011. Table 3 lists the allocations of the 2010 sablefish TACs to hook-and-line and trawl gear. Table 4 lists the allocations of the 2011 sablefish TACs to trawl gear.

The Council recommended that the hook-and-line sablefish TAC be established annually to ensure that the Individual Fishery Quota (IFQ) fishery is conducted concurrent with the halibut IFQ fishery and is based on the most recent survey information. The Council also recommended that only atrawl sablefish TAC be established for two years so that retention of incidental catch of sablefish by trawl gear could commence in January in the second year of the groundfish harvest specifications. However, since there is an annual assessment for sablefish and the final harvest specifications are expected to be published before the IFQ season begins (typically, early March), the industry and Council recommended that the sablefish TAC be set on an annual basis so that the best and most recent scientific information could be considered in recommending the ABCs and TACs. Since sablefish is on bycatch status for trawl gear during the entire fishing year, and given that fishing for groundfish is prohibited prior to January 20, it is not likely that the sablefish allocation to trawl gear would be reached before the effective date of the final harvest specifications.

Table 3—Final 2010 Sablefish TAC Specifications in the GOA and Allocations to Hook-and-Line and Trawl Gear[Values are rounded to the nearest metric ton]Area/districtTACHook-and-line allocationTrawl

allocation

Western1,6601,328332Central4,5103,608902West Yakutat11,6201,410210Southeast Outside2,5802,5800Total10,3708,9261,4441Represents an allocation of 5 percent of the combined Eastern Regulatory Area sablefish TAC to trawl gear in the WYK District.Table 4—Final 2011 Sablefish TAC Specifications in the GOA and Allocation to Trawl Gear1[Values are rounded to the nearest metric ton]Area/districtTACHook-and-line allocationTrawl

allocation

Western1,488n/a298Central4,042n/a808West Yakutat21,450n/a189Southeast Outside2,320n/a0Total9,300n/a1,2951The Council recommended that harvest specifications for the hook-and-line gear sablefish Individual Fishing Quota fisheries be limited to one year.2Represents an allocation of 5 percent of the combined Eastern Regulatory Area sablefish TAC to trawl gear in the WYK District.Apportionments of Pollock TAC Among Seasons and Regulatory Areas, and Allocations for Processing by Inshore and Offshore Components

In the GOA, pollock is apportioned by season and area, and is further allocated for processing by inshore and offshore components. Pursuant to § 679.20(a)(5)(iv)(B), the annual pollock TAC specified for the Western and Central Regulatory Areas of the GOA is apportioned into four equal seasonal allowances of 25 percent. As established by § 679.23(d)(2)(i) through (iv), the A, B, C, and D season allowances are available from January 20 to March 10, March 10 to May 31, August 25 to October 1, and October 1 to November 1, respectively.

Pollock TACs in the Western and Central Regulatory Areas of the GOA are apportioned among Statistical Areas 610, 620, and 630, pursuant to § 679.20(a)(5)(iv)(A). In the A and B seasons, the apportionments are in proportion to the distribution of pollock biomass based on the four most recent NMFS winter surveys. In the C and D seasons, the apportionments are in proportion to the distribution of pollock biomass based on the four most recent NMFS summer surveys. For 2010 and 2011, the Council recommends, and NMFS approves, averaging the winter and summer distribution of pollock in the Central Regulatory Area for the A season. The average is intended to reflect the distribution of pollock and the performance of the fishery in the area during the A season for the 2010 and 2011 fishing years. Within any fishing year, the amount by which a seasonal allowance is under- or overharvested may be added to, or subtracted from, subsequent seasonal allowances in a manner to be determined by the Regional Administrator (§ 679.20(a)(5)(iv)(B)). The rollover amount of unharvested pollock is limited to 20 percent of the seasonal apportionment for the statistical area. Any unharvested pollock above the 20-percent limit could be further distributed to the other statistical areas, in proportion to the estimated biomass in the subsequent season in those statistical areas (§ 679.20(a)(5)(iv)(B)). The pollock TACs in the WYK and SEO District of 2,031 mt and 9,245 mt, respectively, in 2010, and 2,686 mt and 9,245 mt, respectively, in 2011, are not allocated by season.

Section 679.20(a)(6)(i) requires the allocation of 100 percent of the pollock TAC in all regulatory areas and all seasonal allowances to vessels catching pollock for processing by the inshore component after subtraction of amounts projected by the Regional Administrator to be caught by, or delivered to, the offshore component incidental to directed fishing for other groundfish species. Thus, the amount of pollock available for harvest by vessels harvesting pollock for processing by the offshore component is that amount that will be taken as incidental catch during directed fishing for groundfish species other than pollock, up to the maximum retainable amounts allowed by § 679.20(e) and (f). At this time, these incidental catch amounts of pollock are unknown and will be determined during the fishing year.

Tables 5 and 6 list the seasonal biomass distribution of pollock in theWestern and Central Regulatory Areas, area apportionments, and seasonal allowances. The amounts of pollock for processing by the inshore and offshore components are not shown.

Table 5—Final 2010 Distribution of Pollock in the Central and Western Regulatory Areas of the GOA; Seasonal Biomass Distribution, Area Apportionments; and Seasonal Allowances of Annual TAC[Values are rounded to the nearest metric ton]Season1Shumagin (Area 610)Chirikof (Area 620)Kodiak (Area 630)Total2A (Jan 20-Mar 10)5,551(30.22%)8,414(45.81%)4,403(23.97%)18,368B (Mar 10-May 31)5,551(30.22%)9,925(54.04%)2,891(15.74%)18,367C (Aug 25-Oct 1)7,577(41.25%)4,878(26.55%)5,912(32.19%)18,367D (Oct 1-Nov 1)7,577(41.25%)4,878(26.55%)5,912(32.19%)18,367Annual Total26,25628,09519,11873,4691As established by § 679.23(d)(2)(i) through (iv), the A, B, C, and D season allowances are available from January 20 to March 10, March 10 to May 31, August 25 to October 1, and October 1 to November 1, respectively. The amounts of pollock for processing by the inshore and offshore components are not shown in this table.2The WYK and SEO District pollock TACs are not allocated by season and are not included in the total pollock TACs shown in this table.Table 6—Final 2011 Distribution of Pollock in the Central and Western Regulatory Areas of the GOA; Seasonal Biomass Distribution, Area Apportionments; and Seasonal Allowances of Annual TAC[Values are rounded to the nearest metric ton]Season1Shumagin (Area 610)Chirikof (Area 620)Kodiak (Area 630)Total2A (Jan 20-Mar 10)7,342(30.22%)11,129(45.81%)5,823(23.97%)24,294B (Mar 10-May 31)7,342(30.22%)13,128(54.04%)3,824(15.74%)24,294C (Aug 25-Oct 1)10,022(41.25%)6,451(26.55%)7,820(32.19%)24,293D (Oct 1-Nov 1)10,022(41.25%)6,451(26.55%)7,820(32.19%)24,293Annual Total34,72837,15925,28797,1741As established by § 679.23(d)(2)(i) through (iv), the A, B, C, and D season allowances are available from January 20 to March 10, March 10 to May 31, August 25 to October 1, and October 1 to November 1, respectively. The amounts of pollock for processing by the inshore and offshore components are not shown in this table.2The WYK and SEO District pollock TACs are not allocated by season and are not included in the total pollock TACs shown in this table.Seasonal Apportionments of Pacific Cod TAC and Allocations for Processing of Pacific Cod TAC Between Inshore and Offshore Components

Pacific cod fishing is divided into two seasons in the Western and Central Regulatory Areas of the GOA. For hook-and-line, pot, and jig gear, the A season is January 1 through June 10, and the B season is September 1 through December 31. For trawl gear, the A season is January 20 through June 10, and the B season is September 1 through November 1 (§ 679.23(d)(3)(i)). After subtraction of incidental catch from the A season, 60 percent of the annual TAC will be available as a DFA during the A season for the inshore and offshore components. The remaining 40 percent of the annual TAC will be available for harvest during the B season. Under § 679.20(a)(12)(ii), any overage or underage of the Pacific cod allowance from the A season may be subtracted from or added to the subsequent B season allowance.

Section 679.20(a)(6)(ii) requires allocation of the TAC apportionments of Pacific cod in all regulatory areas to vessels catching Pacific cod for processing by the inshore and offshore components. Ninety percent of the Pacific cod TAC in each regulatory area is allocated to vessels catching Pacific cod for processing by the inshore component. The remaining 10 percent of the TAC is allocated to vessels catching Pacific cod for processing by the offshore component. Tables 7 and 8 list the seasonal apportionments and allocations of the final 2010 and 2011 Pacific cod TACs, respectively.

Table 7—Final 2010 Seasonal Apportionments and Allocation of Pacific Cod TAC Amounts in the GOA; Allocations for Processing by the Inshore and Offshore Components[Values are rounded to the nearest metric ton]Regulatory areaSeasonTACComponent allocationInshore (90%)Offshore (10%)WesternAnnual20,76418,6872,077A season (60%)12,45811,2121,246B season (40%)8,3067,475831CentralAnnual36,78233,1043,678A season (60%)22,06919,8622,207B season (40%)14,71313,2421,471EasternAnnual2,0171,816201Total59,56353,6075,956Table 8—Final 2011 Seasonal Apportionments and Allocation of Pacific Cod TAC Amounts in the GOA; Allocations for Processing by the Inshore and Offshore Components[Values are rounded to the nearest metric ton]Regulatory areaSeasonTACComponent allocationInshore (90%)Offshore (10%)WesternAnnual25,69923,1292,570A season (60%)15,41913,8771,542B season (40%)10,2809,2521,028CentralAnnual45,52440,9724,552A season (60%)27,31424,5832,731B season (40%)18,21016,3891,821EasternAnnual2,4962,246250Total73,71966,3477,372Demersal Shelf Rockfish (DSR)

The recommended 2010 and 2011 DSR TAC is 295 mt. In 2006, the Alaska Board of Fish (BOF) allocated the SEO District DSR TAC between the commercial fishery (84 percent) and the sportfish fishery (16 percent). This results in 2010 and 2011 allocations of 248 mt to the commercial fishery and 47 mt to the sportfish fishery. Alaska Department of Fish and Game (ADF&G) deducts estimates of incidental catch of DSR in the commercial halibut fishery from the DSR commercial fishery allocation. In 2009, this resulted in 115 mt being available for the directed commercial DSR fishery apportioned between four outer coast areas. Only two of these areas had GHLs large enough to support directed fisheries, totaling 78 mt. Of this amount, 76 mt were harvested in directed fisheries. DSR harvest in the halibut fishery is linked to the halibut quota; therefore the ADF&G cannot estimate potential DSR incidental catch in that fishery until those quotas are established. Federally permitted catcher vessels using hook-and-line or jig gear fishing for groundfish and Pacific halibut in the SEO District of the GOA are required Full retention of all DSR (§ 679.20(j)). The ADF&G announced the opening of directed fishing for DSR in January following the International Pacific Halibut Commission's (IPHC) annual January meeting.

Apportionments to the Central GOA Rockfish Pilot Program

Section 679.81(a)(1) and (2) require the allocation of the primary rockfish species TACs in the Central Regulatory Area, after deducting incidental catch needs in other directed groundfish fisheries, to participants in the Rockfish Program. Five percent (2.5 percent to trawl gear and 2.5 percent to fixed gear) of the final TACs for Pacific ocean perch, northern rockfish, and pelagic shelf rockfish in the Central Regulatory Area are allocated to the entry-level rockfish fishery; the remaining 95 percent are allocated to those vessels eligible to participate in the Rockfish Program. NMFS is setting aside—in 2010 and 2011—incidental catch amounts (ICAs) of 500 mt of Pacific ocean perch, 100 mt of northern rockfish, and 100 mt of pelagic shelf rockfish for other directed fisheries in the Central Regulatory Area. These amounts are based on recent average incidental catch in the Central Regulatory Area by these other groundfish fisheries.

Section 679.83(a)(1)(i) requires that allocations to the trawl entry-level fishery must be made first from the allocation of Pacific ocean perch available to the rockfish entry-level fishery. If the amount of Pacific ocean perch available for allocation is less than the total allocation allowable for trawl catcher vessels in the rockfish entry-level fishery, then northern rockfish and pelagic shelf rockfish must be allocated to trawl catcher vessels. Allocations of Pacific ocean perch, northern rockfish, and pelagic shelf rockfish to longline gear vessels must be made after the allocations to trawl gear.

Tables 9 and 10 list the final 2010 and 2011 allocations of rockfish in the Central GOA to trawl and longline gear in the entry-level rockfish fishery, respectively. Allocations of primary rockfish species TACs among participants in the Rockfish Program are not included in the final harvest specifications because applications for catcher/processor and catcher vessel cooperatives are due to NMFS on March 1 of each calendar year, thereby preventing NMFS from calculating final 2010 allocations. NMFS will post these allocations on the Alaska Region Web site (http://alaskafisheries.noaa.gov/sustainablefisheries/goarat/default.htm)when they become available in March 2010.

Table 9—Final 2010 Allocations of Rockfish in the Central Gulf of Alaska to Trawl and Longline Gear1in the Entry-Level Rockfish Fishery[Values are rounded to the nearest metric ton]SpeciesTACIncidental catch

Section 679.21(d) establishes the annual halibut PSC limit apportionments to trawl and hook-and-line gear and permits the establishment of apportionments for pot gear. In December 2009, the Council recommended that NMFS maintain the 2009 halibut PSC limits of 2,000 mt for the trawl fisheries and 300 mt for the hook-and-line fisheries. Ten mt of the hook-and-line limit is further allocated to the DSR fishery in the SEO District. The DSR fishery is defined at § 679.21(d)(4)(iii)(A). This fishery has been apportioned 10 mt in recognition of its small-scale harvests. Most vessels in the DSR fishery are less than 60 ft (18.3 m) length overall (LOA) and are exempt from observer coverage. Therefore, observer data are not available to verify actual bycatch amounts. NMFS assumes the halibut bycatch in the DSR fishery is low because of the short soak times for the gear and duration of the DSR fishery. Also, the DSR fishery occurs in the winter when less overlap occurs in the distribution of DSR and halibut. Finally, much of the DSR TAC is not available to the directed DSR commercial fishery. ADF&G sets the GHLs after estimates of incidental catch in all fisheries (including halibut and subsistence) and allocation to the sportfish fishery have been deducted. Of the 362 mt TAC for DSR in 2009, 115 mt was available for the commercial fishery, of which 76 mt were harvested.

The FMP authorizes the Council to exempt specific gear from the halibut PSC limits. NMFS, after consultation with the Council, exempts pot gear, jig gear, and the sablefish IFQ hook-and-line gear fishery from the non-trawl halibut limit for 2010 and 2011. The Council recommended these exemptions because (1) the pot gear fisheries have low annual halibut bycatch mortality (averaging 18 mt annually from 2001 through 2009); (2) IFQ program regulations prohibit discard of halibut if any halibut IFQ permit holder on board a catcher vessel holds unused halibut IFQ (§ 679.7(f)(11)). Sablefish IFQ fishermen typically also hold halibut IFQ permits, so are required to retain the halibut they catch while fishing sablefish IFQ; and (3) halibut mortality for the jig gear fisheries is assumed to be negligible. Halibut mortality is assumed to be negligible in the jig gear fisheries given the small amount of groundfish harvested by jig gear (averaging 258 mt annually from 2001 through 2009), the selective nature of jig gear, and the high survival rates of halibut caught and released with jig gear.

Section 679.21(d)(5) authorizes NMFS to seasonally apportion the halibut PSC limits after consultation with the Council. The FMP and regulations require the Council and NMFS to consider the following information in seasonally apportioning halibut PSC limits: (1) Seasonal distribution of halibut; (2) seasonal distribution of target groundfish species relative to halibut distribution; (3) expected halibut bycatch needs on a seasonal basis relative to changes in halibut biomass and expected catch of target groundfish species; (4) expected bycatch rates on a seasonal basis; (5) expected changes in directed groundfish fishing seasons; (6) expected actual start of fishing effort; and (7) economic effects of establishing seasonal halibut allocations on segments of the target groundfish industry. The information to establish the halibut PSC limits was obtained from the 2009 SAFE report, NMFS, ADF&G, the IPHC, and public testimony.

NMFS concurs in the Council's recommendations listed in Table 11, which shows the final 2010 and 2011 Pacific halibut PSC limits, allowances, and apportionments. Sections 679.21(d)(5)(iii) and (iv) specify that any underages or overages of a seasonal apportionment of a PSC limit will be deducted from or added to the next respective seasonal apportionment within the fishing year.

Section 679.21(d)(3)(ii) authorizes further apportionment of the trawl halibut PSC limit to trawl fishery categories. The annual apportionments are based on each category's proportional share of the anticipated halibut bycatch mortality during the fishing year and optimization of the total amount of groundfish harvest under the halibut PSC limit. The fishery categories for the trawl halibut PSC limits are (1) a deep-water species category, comprised of sablefish, rockfish, deep-water flatfish, rex sole, and arrowtooth flounder; and (2) a shallow-water species category, comprised of pollock, Pacific cod, shallow-water flatfish, flathead sole, Atka mackerel, skates, and “other species” (§ 679.21(d)(3)(iii)). Table 12 lists the final 2010 and 2011 apportionments of Pacific halibut PSC trawl limits between the trawl gear deep-water and the shallow-water species categories.

Table 12—Final 2010 and 2011 Apportionment of Pacific Halibut PSC Trawl Limits Between the Trawl Gear Deep-Water Species Complex and the Shallow-Water Species Complex[Values are in metric tons]SeasonShallow-waterDeep-water1TotalJanuary 20-April 1450100550April 1-July 1100300400July 1-September 1200400600September 1-October 1150Any remainder150Subtotal January 20-October 19008001,700October 1-December 312300Total2,0001Vessels participating in cooperatives in the Central GOA Rockfish Program will receive a portion of the third season (July 1-September 1) deep-water category halibut PSC apportionment. This amount is not currently known but will be posted later on the Alaska Region Web site (http://alaskafisheries.noaa.gov) when it becomes available.2There is no apportionment between shallow-water and deep-water trawl fishery categories during the fifth season (October 1-December 31).Estimated Halibut Bycatch in Prior Years

The best available information on estimated halibut bycatch is data collected by observers during 2009. The calculated halibut bycatch mortality by trawl, hook-and-line, and pot gears through December 31, 2009, is 1,817 mt, 277 mt, and 7 mt, respectively, for a total halibut mortality of 2,101 mt. This mortality was calculated using groundfish and halibut catch data from the NMFS, Alaska Region's catch accounting system. This system contains historical and recent catch information compiled from each Alaska groundfish fishery.

Halibut bycatch restrictions seasonally constrained trawl gear fisheries during the 2009 fishing year. Table 13 displays the closure dates for fisheries that resulted from the attainment of seasonal or annual halibut PSC limits. NMFS does not know amount of groundfish that trawl gear might have harvested if halibut PSC limits had not restricted some 2009 GOA groundfish fisheries.

The final 2010 and 2011 ABCs for pollock, Pacific cod, rex sole, flathead sole, Pacific ocean perch, northern rockfish, rougheye rockfish, shortraker rockfish, and “other species” are higher than those established for 2009, while the final 2010 and 2011 ABCs for sablefish, deep-water flatfish, shallow-water flatfish, arrowtooth flounder, other rockfish, demersal shelf rockfish, thornyhead rockfish, big skate, longnose skate, and “other skates” are lower than those established for 2009. The final ABCs for pelagic shelf rockfish are, respectively, higher in 2010 and lower in 2011 than the 2009 ABCs. For the remaining target species, the Council recommended and the Secretary approved ABC levels in 2010 and 2011 that remain unchanged from 2009. More information on these changes is included in the final 2009 SAFE report. This document is available from the Council (seeADDRESSES).

In the GOA, the total final 2010 TAC amount is 292,087 mt, an increase of three percent from the total proposed 2010 TAC limit of 284,688 mt. The total final 2011 TAC amount is 328,464 mt, an increase of 15 percent from the total proposed 2011 TAC limit of 284,688 mt. Table 14 compares the proposed 2010 TACs to the final 2010 and 2011 TACs.

Table 14—Comparison of Proposed and Final 2010 and 2011 GOA TACs[Values are rounded to the nearest metric ton]Species2010 final TAC2010 proposed TAC2010

The most recent halibut stock assessment was developed by the IPHC staff in December 2009 for the 2010 commercial fishery; this assessment was considered by the IPHC at its annual January 2010 meeting. Since 2006, the IPHC stock assessment has been fitted to a coastwide data set (including the United States and Canada) to estimate total exploitable biomass. Coastwide exploitable biomass at the beginning of 2010 is estimated to be 334 million pounds. The assessment revised last year's estimate of 325 million pounds at the start of 2009 downwards to 291 million pounds and projects an increase of 14 percent over that value to arrive at the 2010 value of 334 million pounds. At least part, if not most, of the downward revision for 2009 is believed to be caused by the ongoing decline in size at age, which continues for all ages in all areas. Projections based on the currently estimated age compositions suggest that the exploitable and female spawning biomasses will continue to increase over the next several years as a sequence of strong year classes recruit to the legal-sized component of the population. The coastwide exploitable biomass was apportioned among regulatory areas in accordance with survey estimates of relative abundance and other considerations. The assessment recommends a coastwide harvest rate of 20 percent of the exploitable biomass overall, but a lower harvest rate of 15 percent for Areas 4A, 4B, 4C, 4D, 4E, and 3B.

Additional information on the Pacific halibut stock assessment may be found in the IPHC's 2009 Pacific halibut stock assessment (December 2009), available on the IPHC Web site athttp://www.iphc.washington.edu.The IPHC considered the 2009 Pacific halibut assessment for 2010 at its January 2010 annual meeting when it set the 2010 commercial halibut fishery catch limits.

Other Factors

The proposed 2010 and 2011 harvest specifications (74 FR 62533, November 30, 2009) discuss potential impacts of expected fishing for groundfish on halibut stocks, as well as methods available for, and costs of, reducing halibut bycatch in the groundfish fisheries.

Halibut Discard Mortality Rates

The Council recommended and NMFS concurs that the halibut discard mortality rates (DMRs) developed and recommended by the IPHC for the 2010 through 2012 GOA groundfish fisheries be used to monitor the 2010 and 2011 GOA halibut bycatch mortality allowances. The IPHC will analyze observer data annually and recommend changes to the DMRs when a DMR shows large variation from the mean. Most of the IPHC's assumed DMRs were based on an average of mortality rates determined from NMFS observer data collected between 1999 and 2008. Long-term average DMRs were not available for some fisheries (for example, the deepwater flatfish fishery has not been prosecuted in recent years), so the IPHC used the average rates from the available years between 1999 and 2008. For other fisheries targets (which include Atka mackerel, “other species,” and skates for all gear types; and for the hook-and-line sablefish targets), where no data mortality was available, the IPHC recommended the mortality rate of halibut caught in the Pacific cod fishery for that gear type as a default rate. Table 15 compares the final GOA halibut DMRs for 2010 and 2011 with the DMRs published in the proposed 2010 and 2011 harvest specifications (74 FR 62533, November 30, 2009). A discussion of the DMRs and their justification is presented in Appendix 2 to the 2009 SAFE report (seeADDRESSES).

Section 679.64 establishes groundfish harvesting and processing sideboard limitations on AFA catcher/processors and CVs in the GOA. These sideboard limits are necessary to protect the interests of fishermen and processors, who have not directly benefitted from the AFA, from fishermen and processors who have received exclusive harvesting and processing privileges under the AFA. Section 679.7(k)(1)(ii) prohibits listed AFA catcher/processors from harvesting any species of fish in the GOA. Additionally, § 679.7(k)(1)(iv) prohibits listed AFA catcher/processors from processing any pollock harvested in a directed pollock fishery in the GOA and any groundfish harvested in Statistical Area 630 of the GOA.

AFA CVs that are less than 125 ft (38.1 m) LOA, have annual landings of pollock in the Bering Sea and Aleutian Islands less than 5,100 mt, and have made at least 40 groundfish landings from 1995 through 1997 are exempt from GOA sideboard limits under § 679.64(b)(2)(ii). Sideboard limits for non-exempt AFA CVs in the GOA are based on their traditional harvest levels of TAC in groundfish fisheries covered by the FMP. Section 679.64(b)(3)(iii) establishes the groundfish sideboard limitations in the GOA based on the retained catch of non-exempt AFA CVs of each sideboard species from 1995 through 1997 divided by the TAC for that species over the same period. Tables 16 and 17 list the final 2010 and 2011 non-exempt AFA CV groundfish sideboard limits. NMFS will deduct all targeted or incidental catch of sideboard species made by non-exempt AFA CVs from the sideboard limits specified in Tables 16 and 17.

The halibut PSC sideboard limits for non-exempt AFA CVs in the GOA are based on the aggregate retained groundfish catch by non-exempt AFA CVs in each PSC target category from 1995 through 1997 divided by the retained catch of all vessels in that fishery from 1995 through 1997 (§ 679.64(b)(4)). Table 18 lists the final 2010 and 2011 non-exempt AFA CV halibut PSC limits for vessels using trawl gear in the GOA.

Section 680.22 establishes groundfish catch limits for vessels with a history of participation in the Bering Sea snow crab fishery to prevent these vessels from using the increased flexibility provided by the Crab Rationalization Program to expand their level of participation in the GOA groundfish fisheries. Sideboard limits restrict the vessels' catch to their collective historical landings in each GOA groundfish fishery (except the fixed-gear sablefish fishery). Sideboard limits also apply to catch made using an LLP license derived from the history of a restricted vessel, even if that LLP license is used on another vessel.

Sideboard limits for non-AFA crab vessels in the GOA are based on their traditional harvest levels of TAC in groundfish fisheries covered by the FMP. Sections 680.22(d) and (e) base the groundfish sideboard limitations in the GOA on the retained catch by non-AFA crab vessels of each sideboard species from 1996 through 2000 divided by the total retained harvest of that species over the same period. Tables 19 and 20 list the final 2010 and 2011 GOA groundfish sideboard limits for non-AFA crab vessels. All targeted or incidental catch of sideboard species made by non-AFA crab vessels will bededucted from the sideboard limits specified in Tables 19 and 20.

Vessels exempt from Pacific cod sideboards are those that landed less than 45,359 kilograms of Bering Sea snow crab and more than 500 mt of groundfish (in round weight equivalents) from the GOA between January 1, 1996, and December 31, 2000, and any vessel named on an LLP that was generated in whole or in part by the fishing history of a vessel meeting the criteria in § 680.22(a)(3).

AnnualSEO0.00002950Thornyhead RockfishAnnualW0.00474252C0.00666374E0.00457083Atka mackerelAnnualGulfwide0.00002,0000Big skateAnnualW0.039259823C0.01592,04933E0.0000681Longnose SkateAnnualW0.0392813C0.01592,00932E0.00007620Other skatesAnnualGulfwide0.01762,09337Other speciesAnnualGulfwide0.01764,500791The Pacific cod A season for trawl gear does not open until January 20.2The Pacific cod B season for trawl gear closes November 1.Rockfish Program Groundfish Sideboard Limitations and Halibut Mortality Limitations

Section 679.82(d) establishes sideboards to limit the ability of participants eligible for the Rockfish Program to harvest fish in fisheries other than the Central GOA rockfish fisheries. The Rockfish Program provides certain economic advantages to harvesters, who could use this economic advantage to increase their participation in other fisheries, thus possibly adversely affecting participants in other fisheries. The final sideboards for 2010 and 2011 limit the total amount of catch that could be taken by eligible harvesters and limit the amount of halibut mortality to historic levels. The sideboard measures are in effect only during the month of July. Traditionally, the Central GOA rockfish fisheries opened in July. The sideboards are designed to restrict fishing during the historical season for the fishery, but allow eligible rockfish harvesters to participate in fisheries before or after the historical rockfish season. Tables 21 and 22 list the final 2010 and 2011 Rockfish Program harvest limits in the WYK District and the Western GOA. Table 23 lists the final 2010 and 2011 Rockfish Program halibut mortality limits for catcher/processors and CVs.

Table 21—Final 2010 Rockfish Program Harvest Limits by Sector for WYK District and Western Regulatory Area by the Catcher/Processor (C/P) and Catcher Vessel (CV) Sectors[Values are rounded to nearest metric ton]AreaFisheryC/P

Amendment 80 to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area, hereinafter referred to as the “Amendment 80 program,” established a limited access privilege program for the non-AFA trawl catcher/processor sector. In order to limit the ability of participants eligible for the Amendment 80 program to expand their harvest efforts in the GOA, the Amendment 80 program established groundfish and halibut PSC catch limits for Amendment 80 program participants.

Section 679.92 establishes groundfish harvesting sideboard limits on all Amendment 80 program vessels, other than the F/V GOLDEN FLEECE, to amounts no greater than the limits shown in Table 37 to part 679. Sideboard limits in the GOA are for pollock in the Western and Central Regulatory Areas and in the WYK District, for Pacific cod gulfwide, for Pacific ocean perch and pelagic shelf rockfish in the Western Regulatory Area and WYK District, and for northern rockfish in the Western Regulatory Area. The harvest of Pacific ocean perch, pelagic shelf rockfish, and northern rockfish in the Central Regulatory Area of the GOA is subject to regulation under the Central GOA Rockfish Program. Amendment 80 program vessels not qualified under the Rockfish Program are excluded from directed fishing for these rockfish species in the Central GOA. Under regulations, the F/V GOLDEN FLEECE is prohibited from directed fishing for pollock, Pacific cod, Pacific ocean perch, pelagic shelf rockfish, and northern rockfish in the GOA.

Groundfish sideboard limits for Amendment 80 program vessels operating in the GOA are based on their average aggregate harvests from 1998 to 2004. Tables 24 and 25 list the final 2010 and 2011 sideboard limits for Amendment 80 program vessels, respectively. All targeted or incidental catch of sideboard species made by Amendment 80 program vessels will be deducted from the sideboard limits in Tables 24 and 25.

The PSC sideboard limits for Amendment 80 program vessels in the GOA are based on the historic use of halibut PSC by Amendment 80 program vessels in each PSC target category from 1998 through 2004. These values are slightly lower than the average historic use to accommodate two factors: Allocation of halibut PSC Cooperative Quotas (CQs) under the Central GOA Rockfish Program and the exemption of the F/V GOLDEN FLEECE from this restriction (§ 679.92(b)(2)). Table 26 lists the final 2010 and 2011 halibut PSC limits for Amendment 80 program vessels, as proscribed at Table 38 to 50 CFR part 679.

Pursuant to § 679.20(d)(1)(i), if the Regional Administrator determines (1) that any allocation or apportionment of a target species or “other species” category allocated or apportioned to a fishery will be reached; or (2) with respect to pollock and Pacific cod, that an allocation or apportionment to an inshore or offshore component allocation will be reached, the Regional Administrator may establish a DFA for that species or species group. If the Regional Administrator establishes a DFA and that allowance is or will be reached before the end of the fishing year, NMFS will prohibit directed fishing for that species or species group in the specified GOA regulatory area or district (§ 679.20(d)(1)(iii)).

The Regional Administrator has determined that the following TAC amounts in Table 27 are necessary as incidental catch to support other anticipated groundfish fisheries for the 2010 and 2011 fishing years:

Consequently, in accordance with § 679.20(d)(1)(i), the Regional Administrator establishes the DFA for the species or species groups listed in Table 27 as zero. Therefore, in accordance with § 679.20(d)(1)(iii), NMFS is prohibiting directed fishing for those species, areas, gear types, and components in the GOA listed in Table 27. These closures will remain in effect through 2400 hrs, A.l.t., December 31, 2011.

Section 679.64(b)(5) provides for management of AFA CV groundfish harvest limits and PSC bycatch limits using directed fishing closures and PSC closures according to procedures set out at §§ 679.20(d)(1)(iv), 679.21(d)(8), and 679.21(e)(3)(v). The Regional Administrator has determined that, in addition to the closures listed above, many of the non-exempt AFA CV sideboard limits listed in Tables 16 and 17 are necessary as incidental catch to support other anticipated groundfish fisheries for the 2010 and 2011 fishing years. In accordance with § 679.20(d)(1)(iv), the Regional Administrator sets the DFAs for the species and species groups in Table 28 at zero. Therefore, in accordance with § 679.20(d)(1)(iii), NMFS is prohibiting directed fishing by non-exempt AFA CVs in the GOA for the species and specified areas listed in Table 28. These closures will remain in effect through 2400 hrs, A.l.t., December 31, 2011.

Table 28—2010 and 2011 Non-Exempt AFA CV Sideboard Directed Fishing Closures for All Gear Types in the GOA[Amounts for incidental catch in other directed fisheries are in metric tons]SpeciesRegulatory area/districtIncidental catch amountPacific codEastern16 (inshore) and 2 (offshore) in 2010.

18 (inshore) and 2 (offshore) in 2011.

Deep-water flatfishWestern0.Rex soleEastern and Western5 and 1.Flathead soleEastern and Western3 and 7.Arrowtooth flounderEastern and Western1 and 17.Pacific ocean perchWestern7 in 2010.

Section 680.22 provides for the management of non-AFA crab vessel GHLs using directed fishing closures in accordance with § 680.22(e)(2) and (3). The Regional Administrator has determined that the non-AFA crab vessel sideboards listed in Tables 19 and 20 are insufficient to support a directed fishery and set the sideboard DFA at zero, with the exception of Pacific cod in the Western and Central Regulatory Areas. Therefore, NMFS is prohibiting directed fishing by non-AFA crab vessels in the GOA for all species and species groups listed in Tables 19 and 20, with the exception of Pacific cod in the Western and Central Regulatory Areas.

Section 679.82 provides for the management of Rockfish Program sideboard limits using directed fishing closures in accordance with § 679.82(d)(7)(i) and (ii). The Regional Administrator has determined that the CV sideboards listed in Tables 21 and 22 are insufficient to support a directed fishery and set the sideboard DFA at zero. Therefore, NMFS is closing directed fishing for pelagic shelf rockfish and Pacific ocean perch in the WYK District and the Western Regulatory Area and for northern rockfish in the Western Regulatory Area by CVs participating in the Central GOA Rockfish Program during the month of July in 2010 and 2011. These closures will remain in effect through 2400 hrs, A.l.t., December 31, 2011.

Closures implemented under the 2009 and 2010 Gulf of Alaska harvest specifications for groundfish (74 FR 7333, February 17, 2009) remain effective under authority of these final 2010 and 2011 harvest specifications, and are posted at the following Web sites:http://alaskafisheries.noaa.gov/index/infobulletins/infobulletins.asp?Yr=2010,andhttp://alaskafisheries.noaa.gov/2010/status.htm.While these closures are in effect, the maximum retainable amounts at § 679.20(e) and (f) apply at any time during a fishing trip. These closures to directed fishing are in addition to closures and prohibitions found in regulations at 50 CFR part 679. NMFS may implement other closures during the 2010 and 2011 fishing years as necessary for effective conservation and management.

Response to Comments

NMFS received three letters of comment, which included six distinct comments, in response to the proposed 2010 and 2011 harvest specifications (74 FR 62533, November 30, 2009). These letters were from an individual, an environmental organization, and a company involved in the guided Pacific halibut sport fishery in Alaska, respectively. These comments are summarized and responded to below.

Comment 1:The commenter raises general concerns about NMFS's management of fisheries, asserting that fishery policies have not benefited American citizens. The commenter also asserts that NMFS does not enforce fisheries regulations and should not be allowed to manage commercial fisheries.

Response:This comment is not specifically related to the proposed rule. The comment recommends broad changes to fisheries management and provides opinions of the Federal Government's general management of marine resources that are outside the scope of this action. The comment did not raise new relevant issues or concerns that have not been explained in the preamble to the proposed rule or addressed in the SAFE reports and other analyses prepared to support the GOA groundfish harvest specifications.

Response:The harvest specifications process is intended to foster conservation and management of marine resources. This process incorporates the best available scientific information from the most recent stock assessment and fisheries evaluation reports prepared by multi-disciplinary teams of scientists. Such reports contain the most recent scientific information on the condition of various groundfish stocks, as well as the condition of other ecosystem components and economic data about Alaska groundfish fisheries. This suite of information allows the Council to make scientifically-based recommendations for annual catch limits that do not exceed, on a species-by-species basis, the OFLs and ABCs established for each GOA target species managed under the FMP.

Comment 3:Overfishing is having a detrimental effect on the health of oceans and coastal communities.

Response:This comment does not specially address the proposed 2010 and 2011 harvest specifications for the GOA. None of the species encompassed by these harvest specifications are overfished or subject to overfishing.

Comment 4:The decline of pollock stocks is having a detrimental impact on marine mammals.

Response:The most recent GOA pollock stock surveys indicate that pollock stocks in this management area are increasing. Furthermore, the EIS (seeADDRESSES) prepared for the Alaska groundfish fisheries specifications process identified a preferred harvest strategy for groundfish and concluded that the preferred harvest strategy, under existing regulations, would have no lasting adverse impacts on marine mammals and other marine life. Additionally, pursuant to the Endangered Species Act, NMFS consults to ensure that Federal actions, including this one, do not jeopardize thecontinued existence of any endangered or threatened marine mammal species.

Comment 5:Federal agencies are obligated to renew an EIS when conditions prevalent at the time of the EIS's development have substantially changed. Recent reductions in the amount of halibut allocated to the halibut IFQ fisheries, as well as implementation of a one-halibut daily bag limit for the guided sport fishery in 2009, constitute a substantial change in environmental conditions. NMFS should update the EIS and adopt reductions in the halibut PSC limits to address the disparity between relatively constant halibut PSC limits and decreasing IFQ halibut and sport halibut allocations.

Response:The EIS examines the environmental impacts of alternative harvest strategies for the federally managed groundfish fisheries in the GOA and the BSAI management areas. The EIS concludes that for all of the components of the environment analyzed, the effects of the harvest specifications, including PSC limits, are insignificant based on the available scientific information. That information is annually updated and incorporated into the harvest specifications process. The EIS explains how PSC limits constrain bycatch in the groundfish fisheries, as well as how halibut bycatch is accounted for by the IPHC. The IPHC is responsible for analyzing the status of halibut stocks and setting the constant exploitation yield (CEY). The CEY is adjusted to account for a variety of removals that occur outside of the commercial hook-and-line fisheries, including incidental catch of halibut in the groundfish fisheries.

NMFS annually prepares a SIR (seeADDRESSES) to evaluate the need to prepare a Supplemental EIS. A Supplemental EIS should be prepared if the agency makes substantial changes in a proposed action that are relevant to environmental concerns, or if significant new circumstances or information exist relevant to environmental concerns associated with the action. The 2010 SIR analyzes the information contained in the Council's SAFE reports and other new, relevant information associated with the management of Alaska groundfish fisheries. The SIR concluded that (1) new changes to the preferred harvest strategy (the action) have not occurred and (2) the new information evaluated in the SIR does not indicate that there are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts. The harvest specifications will result in environmental impacts within the scope of those analyzed and disclosed in the EIS.

Comment 6:Businesses engaged in the guided sport fishing sector in IPHC Area 2C have suffered economic and social impacts due to the 2009 implementation of a one-halibut daily bag limit for guided sport fishermen. These impacts could be mitigated to some extent by managing the halibut PSC limit apportioned to the GOA trawl fisheries to mirror the fluctuations in the directed fishery catch limits set by the IPHC.

Response:The commercial halibut setline and groundfish trawl fisheries currently are subject to binding halibut PSC limits set by the IPHC and Council, respectively, as a part of their efforts to maintain sustainable groundfish stocks. These commercial fisheries are required to stop fishing when their halibut limits (either IFQ or PSC) are taken. Commercial groundfish fisheries are often closed due to the attainment of halibut PSC limits before target species TACs have been fully harvested. Participants in these fisheries incur significant costs to stay within their halibut catch limits. The issue regarding changes to commercial catch limits was considered during the development of the one-halibut daily bag limit (74 FR 21194, May 6, 2009). In the context of seeking economic parity between halibut resource user groups, implementing additional restrictions on the incidental catch of halibut by the commercial fishing sector is outside the scope of this action.

Classification

NMFS has determined that these final harvest specifications are consistent with the FMP and with the Magnuson-Stevens Act and other applicable laws.

This action is authorized under 50 CFR 679.20 and is exempt from review under Executive Order 12866.

NMFS prepared an EIS for this action (seeADDRESSES) and made it available to the public on January 12, 2007 (72 FR 1512). On February 13, 2007, NMFS issued the Record of Decision (ROD) for the EIS. In January 2010, NMFS prepared a Supplemental Information Report (SIR) for this action. Copies of the EIS, ROD, and SIR for this action are available from NMFS (seeADDRESSES). The EIS analyzes the environmental consequences of the groundfish harvest specifications and alternative harvest strategies on resources in the action area. The SIR evaluates the need to prepare a Supplemental EIS (SEIS) for the 2010 and 2011 groundfish harvest specifications.

A SEIS should be prepared if (1) the agency makes substantial changes in the proposed action that are relevant to environmental concerns, or (2) significant new circumstances or information exist relevant to environmental concerns and bearing on the proposed action or its impacts (40 CFR 1502.9(c)(1)). After reviewing the information contained in the SIR and SAFE reports, the Regional Administrator has determined that (1) approval of the 2010 and 2011 harvest specifications, which were set according to the preferred harvest strategy in the EIS, do not constitute a change in the action; and (2) there are no significant new circumstances or information relevant to environmental concerns and bearing on the action or its impacts. Additionally, the 2010 and 2011 harvest specifications will result in environmental impacts within the scope of those analyzed and disclosed in the EIS. Therefore, supplemental National Environmental Protection Act (NEPA) documentation is not necessary to implement the 2010 and 2011 harvest specifications.

The proposed harvest specifications were published in theFederal Registeron November 30, 2009 (74 FR 62533). An Initial Regulatory Flexibility Analysis (IRFA) was prepared to evaluate the impacts on small entities of alternative harvest strategies for the groundfish fisheries in the EEZ off Alaska. The public comment period ended on December 30, 2009. No comments were received regarding the IRFA or the economic impacts of this action. A FRFA was prepared pursuant to the Regulatory Flexibility Act of 1980, as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 601-612). Copies of the IRFA and FRFA prepared for this action are available from NMFS, Alaska Region (seeADDRESSES).

Each year, NMFS promulgates a rule establishing the harvest specifications pursuant to the adopted harvest strategy. While the harvest specification numbers may change from year to year, the harvest strategy for establishing those numbers does not change. Therefore, NMFS is using the same IRFA and FRFA prepared in connection with the EIS in association with this action. NMFS considers the annual rulemakings establishing the harvest specification numbers to be a series of closely-related rules stemming from the harvest strategy and representing one rule for purposes of the Regulatory Flexibility Act (5 U.S.C. 605(c)). A summary of the FRFA follows.

The action analyzed in the FRFA is the adoption of a harvest strategy to govern the catch of groundfish in the GOA. The preferred alternative is thestatus quo harvest strategy in which TACs fall within the range of ABCs recommended by the Council's harvest specifications process and TACs recommended by the Council. This action is taken in accordance with the FMP prepared by the Council pursuant to the Magnuson-Stevens Act.

The directly regulated small entities include approximately 747 small CVs and fewer than 20 small catcher/processors. The entities directly regulated by this action harvest groundfish in the EEZ of the GOA, and in parallel fisheries within State of Alaska waters. These include entities operating CVs and catcher/processor vessels within the action area, and entities receiving direct allocations of groundfish. CVs and catcher/processors were considered to be small entities if they had annual gross receipts of $4 million per year or less from all economic activities, including the revenue of their affiliated operations. Data from 2005 were the most recent available to determine the number of small entities.

Estimates of first wholesale gross revenues for the GOA were used as indices of the potential impacts of the alternative harvest strategies on small entities. An index of revenues was projected to decline under the preferred alternative due to declines in ABCs for key species in the GOA. The index of revenues declined by less than four percent between 2007 and 2008, and by less than one percent between 2007 and 2009.

The preferred alternative (Alternative 2) was compared to four other alternatives. These included Alternative 1, which would have set TACs to generate fishing rates equal to the maximum permissible ABC (if the full TAC were harvested), unless the sum of TACs exceeded the GOA OY, in which case harvests would be limited to the OY. Alternative 3 would have set TACs to produce fishing rates equal to the most recent five-year average fishing rate. Alternative 4 would have set TACs to equal the lower limit of the GOA OY range. Alternative 5—the “no action” alternative—would have set TACs equal to zero.

Alternatives 3, 4, and 5 were all associated with smaller levels for important fishery TACs than Alternative 2. Estimated total first wholesale gross revenues were used as an index of potential adverse impacts to small entities. As a consequence of the lower TAC levels, Alternatives 3, 4, and 5 all had smaller first wholesale revenue indices than Alternative 2. Thus, Alternatives 3, 4, and 5 had greater adverse impacts on small entities. Alternative 1 appeared to generate higher values of the gross revenue index for fishing operations in the GOA than Alternative 2. A large part of the Alternative 1 GOA revenue appears to be due to the assumption that the full Alternative 1 TAC would be harvested. This increased revenue is due to increases in flatfish TACs that were much higher for Alternative 1 than for Alternative 2. In recent years, halibut bycatch constraints in these fisheries have kept actual flatfish catches from reaching Alternative 1 levels. Therefore, a large part of the revenues associated with Alternative 1 are unlikely to occur. Also, Alternative 2 TACs are constrained by the ABCs the Plan Teams and SSC are likely to recommend to the Council on the basis of a full consideration of biological issues. These ABCs are often less than Alternative 1's maximum permissible ABCs; therefore higher TACs under Alternative 1 may not be consistent with prudent biological management of the resource. For these reasons, Alternative 2 is the preferred alternative.

This action does not modify recordkeeping or reporting requirements, or duplicate, overlap, or conflict with any Federal rules.

Adverse impacts on marine mammals resulting from fishing activities conducted under this rule are discussed in the EIS (seeADDRESSES).

Pursuant to 5 U.S.C. 553(d)(3), the Assistant Administrator for Fisheries, NOAA, finds good cause to waive the 30-day delay in effectiveness for this rule. Plan Team review occurred in November 2009, and Council consideration and recommendations occurred in December 2009. Accordingly, NMFS review could not begin until January 2010. For all fisheries not currently closed because the TACs established under the final 2009 and 2010 harvest specifications (74 FR 7333, February 17, 2009) were not reached, the possibility exists that they would be closed prior to the expiration of a 30-day delayed effectiveness period, if implemented, because their TACs could be reached. Certain fisheries, such as those for pollock and Pacific cod are intensive, fast-paced fisheries. Other fisheries, such as those for flatfish, rockfish, and “other species,” are critical as directed fisheries and as incidental catch in other fisheries. U.S. fishing vessels have demonstrated the capacity to catch the TAC allocations in these fisheries. Any delay in allocating the final TACs in these fisheries would cause confusion to the industry and potential economic harm through unnecessary discards. Determining which fisheries may close is impossible because these fisheries are affected by several factors that cannot be predicted in advance, including fishing effort, weather, movement of fishery stocks, and market price. Furthermore, the closure of one fishery has a cascading effect on other fisheries by freeing-up fishing vessels, allowing them to move from closed fisheries to open ones, increasing the fishing capacity in those open fisheries and causing them to close at an accelerated pace.

In fisheries subject to declining sideboards, a failure to implement the updated sideboards before initial season's end could preclude the intended economic protection to the non-sideboarded sectors. Conversely, in fisheries with increasing sideboards, economic benefit could be precluded to the sideboarded sectors.

If the final harvest specifications are not effective by March 6, 2010, which is the start of the 2010 Pacific halibut season as specified by the IPHC, the hook-and-line sablefish fishery will not begin concurrently with the Pacific halibut IFQ season. This would result in confusion for the industry and economic harm from unnecessary discard of sablefish that are caught along with Pacific halibut, as both hook-and-line sablefish and Pacific halibut are managed under the same IFQ program. Immediate effectiveness of the final 2010 and 2011 harvest specifications will allow the sablefish IFQ fishery to begin concurrently with the Pacific halibut IFQ season. Also, the immediate effectiveness of this action is required to provide consistent management and conservation of fishery resources based on the best available scientific information. This is particularly true of those species which have lower 2010 ABCs and TACs than those established in the 2009-2010 harvest specifications. Immediate effectiveness also would give the fishing industry the earliest possible opportunity to plan and conduct its fishing operations with respect to new information about TAC limits. Therefore, NMFS finds good cause to waive the 30-day delay in effectiveness under 5 U.S.C. 553(d)(3).

Small Entity Compliance Guide

The following information is a plain language guide to assist small entities in complying with this final rule as required by the Small Business Regulatory Enforcement Fairness Act of 1996. This final rule's primary purpose is to announce the final 2010 and 2011 harvest specifications and prohibited species bycatch allowances for the groundfish fisheries of the GOA. This action is necessary to establish harvestlimits and associated management measures for groundfish during the 2010 and 2011 fishing years and to accomplish the goals and objectives of the FMP. This action affects all fishermen who participate in the GOA fisheries. The specific amounts of OFL, ABC, TAC, and PSC are provided in tables to assist the reader. NMFS will announce closures of directed fishing in theFederal Registerand information bulletins released by the Alaska Region. Affected fishermen should keep themselves informed of such closures.

National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

ACTION:

Final rule; closures.

SUMMARY:

NMFS announces final 2010 and 2011 harvest specifications and prohibited species catch allowances for the groundfish fishery of the Bering Sea and Aleutian Islands management area (BSAI). This action is necessary to establish harvest limits for groundfish during the 2010 and 2011 fishing years, and to accomplish the goals and objectives of the Fishery Management Plan for Groundfish of the BSAI (FMP). The intended effect of this action is to conserve and manage the groundfish resources in the BSAI in accordance with the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).

DATES:

Effective from 1200 hrs, Alaska local time (A.l.t.), March 12, 2010, through 2400 hrs, A.l.t., December 31, 2011.

ADDRESSES:

Electronic copies of the Final Alaska Groundfish Harvest Specifications Environmental Impact Statement (EIS), Record of Decision (ROD), Supplementary Information Report (SIR) to the EIS, and Final Regulatory Flexibility Analysis (FRFA) for this action may be obtained fromhttp://alaskafisheries.noaa.gov.The 2009 Stock Assessment and Fishery Evaluation (SAFE) report for the groundfish resources of the BSAI dated November 2009, including discard mortality rates (DMR) for halibut, is available from the North Pacific Fishery Management Council's Web site athttp://www.alaskafisheries.noaa.gov/npfmc.

FOR FURTHER INFORMATION CONTACT:

Steve Whitney, 907-586-7269.

SUPPLEMENTARY INFORMATION:

Federal regulations at 50 CFR part 679 implement the FMP and govern the groundfish fisheries in the BSAI. The North Pacific Fishery Management Council (Council) prepared the FMP, and NMFS approved it under the Magnuson-Stevens Act. General regulations governing U.S. fisheries also appear at 50 CFR part 600.

The FMP and its implementing regulations require NMFS, after consultation with the Council, to specify the total allowable catch (TAC) for each target species and for the “other species” category; the sum must be within the optimum yield (OY) range of 1.4 million to 2.0 million metric tons (mt) (see§ 679.20(a)(1)(i)). NMFS also must specify apportionments of TACs, prohibited species catch (PSC) allowances, and prohibited species quota (PSQ) reserves established by § 679.21, seasonal allowances of pollock, Pacific cod, and Atka mackerel TAC; Amendment 80 allocations, and Community Development Quota (CDQ) reserve amounts established by § 679.20(b)(1)(ii). The final harvest specifications set forth in Tables 1 through 16 of this action satisfy these requirements. The sum of TACs is 1,677,154 mt for 2010 and is 1,996,558 mt for 2011.

Section 679.20(c)(3)(i) further requires NMFS to consider public comment on the proposed annual TACs (and apportionments thereof) and PSC allowances, and to publish final harvest specifications in theFederal Register.The proposed 2010 and 2011 harvest specifications and PSC allowances for the groundfish fishery of the BSAI were published in theFederal Registeron December 2, 2009 (74 FR 63100). Comments were invited and accepted through January 4, 2010. NMFS received two letters with four comments on the proposed harvest specifications. These comments are summarized and responded to in the “Response to Comments” section of this rule. NMFS consulted with the Council on the final 2010 and 2011 harvest specifications during the December 2009 Council meeting in Anchorage, AK. After considering public comments, as well as biological and economic data that were available at the Council's December meeting, NMFS is implementing the final 2010 and 2011 harvest specifications as recommended by the Council.

Acceptable Biological Catch (ABC) and TAC Harvest Specifications

The final ABC levels are based on the best available biological and socioeconomic information, including projected biomass trends, information on assumed distribution of stock biomass, and revised technical methods used to calculate stock biomass. In general, the development of ABCs and overfishing levels (OFLs) involves sophisticated statistical analyses of fish populations. The FMP specifies a series of six tiers to define OFL and ABC amounts based on the level of reliable information available to fishery scientists. Tier one represents the highest level of information quality available while tier six represents the lowest.

In December 2009, the Scientific and Statistical Committee (SSC), Advisory Panel (AP), and Council reviewed current biological information about the condition of the BSAI groundfish stocks. The Council's Plan Team compiled and presented this information in the 2009 SAFE report for the BSAI groundfish fisheries, dated November 2009. The SAFE report contains a review of the latest scientific analyses and estimates of each species' biomass and other biological parameters, as well as summaries of the available information on the BSAI ecosystem and the economic condition of groundfish fisheries off Alaska. The SAFE report is available for public review (seeADDRESSES). From these data and analyses, the Plan Team estimates an OFL and ABC for each species or species category.

In December 2009, the SSC, AP, and Council reviewed the Plan Team's recommendations. The SSC concurred with the Plan Team's recommendations, and the Council adopted the OFL and ABC amounts recommended by the SSC (Table 1). The final TAC recommendations were based on the ABCs as adjusted for other biologicaland socioeconomic considerations, including maintaining the sum of the TACs within the required OY range of 1.4 million to 2.0 million mt. The Council adopted the AP's 2010 and 2011 TAC recommendations. None of the Council's recommended TACs for 2010 or 2011 exceeds the final 2010 or 2011 ABCs for any species category. The final 2010 and 2011 harvest specifications approved by the Secretary are unchanged from those recommended by the Council and are consistent with the preferred harvest strategy alternative in the EIS (seeADDRESSES). NMFS finds that the Council's recommended OFLs, ABCs, and TACs are consistent with the biological condition of groundfish stocks as described in the 2009 SAFE report that was approved by the Council.

Other Actions Potentially Affecting the 2010 and 2011 Harvest Specifications

The Council is developing an amendment to the FMP to comply with Magnuson-Stevens Act requirements associated with annual catch limits and accountability measures. That amendment may result in revisions to how total annual groundfish mortality is estimated and accounted for in the annual SAFE reports, which in turn may affect the OFL, ABC, and TAC for certain groundfish species. NMFS will attempt to identify additional sources of mortality to groundfish stocks not currently reported or considered by the groundfish stock assessments in recommending OFL, ABC, and TAC for certain groundfish species. These additional sources of mortality may include recreational fishing, subsistence fishing, catch of groundfish during the NMFS trawl and hook-and-line surveys, catch taken under experimental fishing permits issued by NMFS, discarded catch of groundfish in the commercial halibut fisheries, use of groundfish as bait in the crab fisheries, or other sources of mortality not yet identified.

At its October 2009 meeting, the Council approved Amendment 95 to the FMP. This amendment would separate skates from the “other species” category so that individual OFLs, ABCs, and TACs may be established for skates. If the Secretary approves the amendment then the change would be in effect for the 2011 fishing year.

At its April 2009 meeting, the Council adopted Amendment 91 to the FMP. This amendment would establish new measures to minimize Chinook salmon bycatch in the Bering Sea pollock fisheries, including new Chinook salmon PSC limits that, when reached, would prohibit directed fishing for pollock. If approved, Amendment 91 could be effective by 2011.

Changes From the Proposed 2010 and 2011 Harvest Specifications in the BSAI

In October 2009, the Council made its recommendations for the proposed 2010 and 2011 harvest specifications (74 FR 63100, December 2, 2009) based largely on information contained in the 2008 SAFE report for the BSAI groundfish fisheries. The 2009 SAFE report, which was not available when the Council made its recommendations in October 2009, contains the best and most recent scientific information on the condition of the groundfish stocks. In December 2009, the Council considered the 2009 SAFE report in making its recommendations for the final 2010 and 2011 harvest specifications. Based on the 2009 SAFE report, the sum of the 2010 and 2011 recommended final TACs for the BSAI (1,677,154 mt for 2010, and 1,996,558 mt for 2011) are higher than the sums of the proposed 2010 and 2011 TACs (1,585,000 mt each year). Compared to the proposed 2010 TACs, the Council's final TAC recommendations increase for species when the best and most recent scientific analysis supports a larger TAC. These changes increase fishing opportunities for fishermen and add economic benefits to the nation. Increased TACs are specified for BSAI sablefish, BSAI Atka mackerel, yellowfin sole, rock sole, arrowtooth flounder, flathead sole, Alaska plaice, BSAI Pacific ocean perch, northern rockfish, and “other species.” The Council reduced TAC levels to provide greater protection for several species including Bering Sea subarea pollock, Pacific cod, Greenland turbot, and rougheye rockfish.

The largest TAC reduction was for Pacific cod. The 2010 BSAI Pacific cod ABC was reduced 25,000 mt, and the corresponding TAC was reduced 24,250. While the Plan Team's selected model incorporating the latest catch and survey data results in a lower ABC and TAC than the proposed rule, the SSC noted that both the 2006 and 2008 year class appear to be strong, which should create an increasing population and biomass in the near future. For 2011, the model produces an ABC 15,000 mt higher than the proposed ABC.

The SSC concurred with the Plan Team's model choice for Bering Sea pollock, which when incorporated with updated survey and catch data results in an ABC and TAC 2,000 mt lower than the proposed harvest specifications for 2010. While the SSC notes that there are legitimate concerns over the Bering Sea pollock stock, the 2006 and 2008 year classes appear to be strong and there are several precautionary aspects incorporated into the current stock assessment. The SSC also notes that while the current model produces a 295,000 mt higher Bering Sea pollock ABC and TAC for 2011, these numbers are provisional and will be greatly affected by next year's data collection and analysis.

The changes in the final rule from the proposed rule are based on the most recent scientific information and implement the harvest strategy described in the proposed rule for the harvest specifications. These changes are compared in the following table:

The final 2010 and 2011 TAC recommendations for the BSAI are within the OY range established for the BSAI and do not exceed the ABC for any single species or complex. Table 1 lists the final 2010 and 2011 OFL, ABC, TAC, initial TAC (ITAC), and CDQ reserve amounts of the BSAI groundfish. The apportionment of TAC amounts among fisheries and seasons is discussed below.

As mentioned in the proposed 2010 and 2011 harvest specifications, NMFS is apportioning the amounts shown in Table 2 from the non-specified reserve to increase the ITAC of several target species.

Table 1—Final 2010 and 2011 Overfishing Level (OFL), Acceptable Biological Catch (ABC), Total Allowable Catch (TAC), Initial TAC (ITAC), and CDQ Reserve Allocation of Groundfish in theBSAI1[Amounts are in metric tons]SpeciesArea2010OFLABCTACITAC2CDQ32011OFLABCTACITAC2CDQ3Pollock3BS2918,000813,000813,000731,70081,3001,220,0001,110,0001,110,000999,000111,000AI240,00033,10019,00017,1001,90039,10032,20019,00017,1001,900Bogoslof22,0001565050022,00015650500Pacific cod4BSAI205,000174,000168,780150,72118,059251,000214,000207,580185,36922,211Sablefish5BS3,3102,7902,7902,3023842,9702,5002,5001,06394AI2,4502,0702,0701,6823492,2001,8601,86039535Atka mackerelBSAI88,20074,00074,00066,0827,91876,20065,00065,00058,0456,955EAI/BSn/a23,80023,80021,2532,547n/a20,90020,90018,6642,236CAIn/a29,60029,60026,4333,167n/a26,00026,00023,2182,782WAIn/a20,60020,60018,3962,204n/a18,10018,10016,1631,937Yellowfin soleBSAI234,000219,000219,000195,56723,433227,000213,000213,000190,20922,791Rock soleBSAI243,000240,00090,00080,3709,630245,000242,00090,00080,3709,630Greenland turbotBSAI7,4606,1206,1205,202n/a6,8605,3705,3704,565n/aBSn/a4,2204,2203,587452n/a3,7003,7003,145396AIn/a1,9001,9001,6150n/a1,6701,6701,4200Arrowtooth flounderBSAI191,000156,00075,00063,7508,025191,000157,00075,00063,7508,025Flathead soleBSAI83,10069,20060,00053,5806,42081,80068,10060,00053,5806,420Other flatfish6BSAI23,00017,30017,30014,705023,00017,30017,30014,7050Alaska plaiceBSAI278,000224,00050,00042,5000314,000248,00050,00042,5000Pacific ocean perchBSAI22,40018,86018,86016,677n/a22,20018,68018,68016,518n/aBSn/a3,8303,8303,2560n/a3,7903,7903,2220EAIn/a4,2204,2203,768452n/a4,1804,1803,733447CAIn/a4,2704,2703,813457n/a4,2304,2303,777453WAIn/a6,5406,5405,840700n/a6,4806,4805,787693Northern rockfishBSAI8,6407,2407,2406,15408,7007,2907,2906,1970Shortraker rockfishBSAI51638738732905163873873290Rougheye rockfishBSAI66954754746506505315314510Other rockfish7BSAI1,3801,0401,04088401,3801,0401,0408840BSn/a4854854120n/a4854854120AIn/a5555554720n/a5555554720SquidBSAI2,6201,9701,9701,67502,6201,9701,9701,6750Other species8BSAI88,20061,10050,00042,500088,20061,10050,00042,5000Total2,462,9452,121,8801,677,1541,493,994159,4782,826,3962,467,4841,996,5581,779,254191,0501These amounts apply to the entire BSAI management area unless otherwise specified. With the exception of pollock, and for the purpose of these harvest specifications, the Bering Sea (BS) subarea includes the Bogoslof District.2Except for pollock, the portion of the sablefish TAC allocated to hook-and-line and pot gear, and Amendment 80 species, 15 percent of each TAC is put into a reserve. The ITAC for these species is the remainder of the TAC after the subtraction of these reserves. For pollock and Amendment 80 species, ITAC is the non-CDQ allocation of TAC (seefootnotes 3 and 5).3Under § 679.20(a)(5)(i)(A)(1), the annual BS subarea pollock TAC after subtracting first for the CDQ directed fishing allowance (10 percent) and second for the incidental catch allowance (4.0 percent), is further allocated by sector for a directed pollock fishery as follows: inshore—50 percent; catcher/processor—40 percent; and motherships—10 percent. Under § 679.20(a)(5)(iii)(B)(2)(i) and(ii), the annual Aleutian Islands subarea pollock TAC, after subtracting first for the CDQ directed fishing allowance (10 percent) and second for the incidental catch allowance (1,600 mt) is allocated to the Aleut Corporation for a directed pollock fishery.4The Pacific cod TAC is reduced by 3 percent from the ABC to account for the State of Alaska's (State) guideline harvest level in State waters of the Aleutian Islands subarea.5For the Amendment 80 species (Atka mackerel, flathead sole, rock sole, yellowfin sole, Pacific cod, and Aleutian Islands Pacific ocean perch), 10.7 percent of the TAC is reserved for use by CDQ participants (see§§ 679.20(b)(1)(ii)(C) and 679.31). Twenty percent of the sablefish TAC allocated to hook-and-line gear or pot gear, 7.5 percent of the sablefish TAC allocated to trawl gear, and 10.7 percent of the TACs for Bering Sea Greenland turbot and arrowtooth flounder are reserved for use by CDQ participants (see§ 679.20(b)(1)(ii)(B) and (D)). Aleutian Islands Greenland turbot, “other flatfish,” Alaska plaice, Bering Sea Pacific ocean perch, northern rockfish, shortraker rockfish, rougheye rockfish, “other rockfish,” squid, and “other species” are not allocated to the CDQ program.6“Other flatfish” includes all flatfish species, except for halibut (a prohibited species), flathead sole, Greenland turbot, rock sole, yellowfin sole, arrowtooth flounder, and Alaska plaice.7“Other rockfish” includes all Sebastes and Sebastolobus species except for Pacific ocean perch, northern, dark, shortraker, and rougheye rockfish.8“Other species” includes sculpins, sharks, skates, and octopus. Forage fish, as defined at § 679.2, are not included in the “other species” category.Reserves and the Incidental Catch Allowance (ICA) for Pollock, Atka Mackerel, Flathead Sole, Rock Sole, Yellowfin Sole, and Aleutian Islands Pacific Ocean Perch

Section 679.20(b)(1)(i) requires the placement of 15 percent of the TAC for each target species or “other species” category, except for pollock, the hook-and-line and pot gear allocation of sablefish, and the Amendment 80 species, in a non-specified reserve. Section 679.20(b)(1)(ii)(B) requires that 20 percent of the hook-and-line and pot gear allocation of sablefish be allocated to the fixed gear sablefish CDQ reserve. Section 679.20(b)(1)(ii)(D) requires allocation of 7.5 percent of the trawl gear allocations of sablefish and 10.7 percent of the Bering Sea Greenland turbot and arrowtooth flounder TACs to the respective CDQ reserves. Section 679.20(b)(1)(ii)(C) requires allocation of 10.7 percent of the TACs for Atka mackerel, Aleutian Islands Pacific ocean perch, yellowfin sole, rock sole, flathead sole, and Pacific cod be allocated to the CDQ reserves. Sections 679.20(a)(5)(i)(A) and 679.31(a) also require the allocation of 10 percent of the BSAI pollock TACs to the pollock CDQ directed fishing allowance (DFA). The entire Bogoslof District pollock TAC is allocated as an ICA (see§ 679.20(a)(5)(ii)). With the exception of the hook-and-line and pot gear sablefish CDQ reserve, the regulations do not further apportion the CDQ allocations by gear. Sections 679.21(e)(3)(i)(A) and (e)(4)(i)(A) requires withholding 7.5 percent of the Chinook salmon PSC limit, 10.7 percent of the crab and non-Chinook salmon PSC limits, and 393 mt of halibut PSC as PSQ reserves for the CDQ fisheries. Sections 679.30 and 679.31 set forth regulations governing the management of the CDQ and PSQ reserves, respectively.

Pursuant to § 679.20(a)(5)(i)(A)(1), NMFS allocates a pollock ICA of 4 percent of the BS subarea pollock TAC after subtraction of the 10 percent CDQ reserve. This allowance is based on NMFS' examination of the pollock incidental catch, including the incidental catch by CDQ vessels, in target fisheries other than pollock from 1999 through 2009. During this 9-year period, the pollock incidental catch ranged from a low of 2.4 percent in 2006 to a high of 5 percent in 1999, with an 11-year average of 3.3 percent. Pursuant to § 679.20(a)(5)(iii)(B)(2)(i) and (ii), NMFS establishes a pollock ICA of 1,600 mt of the AI subarea TAC after subtraction of the 10 percent CDQ DFA. This allowance is based on NMFS' examination of the pollock incidental catch, including the incidental catch by CDQ vessels, in target fisheries other than pollock from 2003 through 2009. During this 7-year period, the incidental catch of pollock ranged from a low of 5 percent in 2006 to a high of 10 percent in 2003, with a 7-year average of 7 percent.

The regulations do not designate the remainder of the non-specified reserve by species or species group. Any amount of the reserve may be apportioned to a target species or to the “other species” category during the year, providing that such apportionments do not result in overfishing (see§ 679.20(b)(1)(ii)). The Regional Administrator has determined that the ITACs specified for the species listed in Table 2 need to be supplemented from the non-specified reserve because U.S. fishing vessels have demonstrated the capacity to catch the full TACallocations. Therefore, in accordance with § 679.20(b)(3), NMFS is apportioning the amounts shown in Table 2 from the non-specified reserve to increase the ITAC for northern rockfish, shortraker rockfish, rougheye rockfish, and Bering Sea “other rockfish” by 15 percent of the TAC in 2010 and 2011.

Section 679.20(a)(5)(i)(A) requires that the pollock TAC apportioned to the BS subarea, after subtraction of the 10 percent for the CDQ program and the 4 percent for the ICA, be allocated as a DFA as follows: 50 percent to the inshore sector, 40 percent to the catcher/processor sector, and 10 percent to the mothership sector. In the BS subarea, 40 percent of the DFA is allocated to the A season (January 20-June 10), and 60 percent of the DFA is allocated to the B season (June 10-November 1). The AI directed pollock fishery allocation to the Aleut Corporation is the amount of pollock remaining in the AI subarea after subtracting 1,900 mt for the CDQ DFA (10 percent) and 1,600 mt for the ICA. In the AI subarea, 40 percent of the DFA is allocated to the A season and the remainder of the directed pollock fishery is allocated to the B season. Table 3 lists these 2010 and 2011 amounts.

Section 679.20(a)(5)(i)(A)(4) also includes several specific requirements regarding BS pollock allocations. First, 8.5 percent of the pollock allocated to the catcher/processor sector will be available for harvest by AFA catcher vessels (CVs) with catcher/processor (CP) sector endorsements, unless the Regional Administrator receives a cooperative contract that provides for the distribution of harvest among AFA CPs and AFA CVs in a manner agreed to by all members. Second, AFA CPs not listed in the AFA are limited to harvesting not more than 0.5 percent of the pollock allocated to the catcher/processor sector. Table 3 lists the 2010 and 2011 allocations of pollock TAC. Tables 11 through 16 list the AFA CP and CV harvesting sideboard limits. The tables for the pollock allocations to the BS subarea inshore pollock cooperatives and open access sector will be posted on the Alaska Region Web site athttp://www.alaskafisheries.noaa.gov.

Table 3 also lists seasonal apportionments of pollock and harvest limits within the Steller Sea Lion Conservation Area (SCA). The harvest within the SCA, as defined at § 679.22(a)(7)(vii), is limited to 28 percent of the annual DFA until 12 noon, April 1. The remaining 12 percent of the 40 percent annual DFA allocated to the A season may be taken outside the SCA before 12 noon, April 1 or inside the SCA after 12 noon, April 1. If less than 28 percent of the annual DFA is taken inside the SCA before 12 noon, April 1, the remainder will be available to be taken inside the SCA after 12 noon, April 1. The A season pollock SCA harvest limit will be apportioned to each sector in proportion to each sector's allocated percentage of the DFA. Table 3 lists these 2010 and 2011 amounts by sector.

Table 3—Final 2010 and 2011 Allocations of Pollock TACS to the Directed Pollock Fisheries and to the CDQ Directed Fishing Allowances (DFA)1[Amounts are in metric tons]Area and sector2010

allocations

2010 A season1A season DFASCA

harvest

limit2

2010 B

season1

B season DFA2011

Allocations

2011 A season1A season DFASCA

harvest

limit2

2011 B season1B season DFABering Sea subarea813,000n/an/an/a1,110,000n/an/an/aCDQ DFA81,30032,52022,76448,780111,00044,40031,08066,600ICA129,268n/an/an/a39,960n/an/an/aAFA Inshore351,216140,48698,340210,730479,520191,808134,266287,712AFA Catcher/Processors3280,973112,38978,672168,584383,616153,446107,412230,170Catch by C/Ps257,090102,836n/a154,254351,009140,403n/a210,605Catch by CVs323,8839,553n/a14,33032,60713,043n/a19,564Unlisted C/P Limit41,405562n/a8431,918767n/a1,151AFA Motherships70,24328,09719,66842,14695,90438,36226,85357,542Excessive Harvesting Limit5122,926n/an/an/a167,832n/an/an/aExcessive Processing Limit6210,730n/an/an/a287,712n/an/an/aTotal Bering Sea DFA702,432280,973196,681421,459959,040383,616268,531575,424Aleutian Islands subarea119,000n/an/an/a19,000n/an/an/aCDQ DFA1,900760n/a1,1401,900760n/a1,140ICA1,600800n/a8001,600800n/a800Aleut Corporation15,50015,500n/a015,50015,500n/a0Bogoslof District ICA750n/an/an/a50n/an/an/a1Pursuant to § 679.20(a)(5)(i)(A), the BS subarea pollock, after subtraction for the CDQ DFA (10 percent) and the ICA (4 percent), is allocated as a DFA as follows: inshore sector—50 percent, catcher/processor sector (C/P)—40 percent, and mothership sector—10 percent. In the BS subarea, 40 percent of the DFA is allocated to the A season (January 20-June 10) and 60 percent of the DFA is allocated to the B season (June 10-November 1). Pursuant to § 679.20(a)(5)(iii)(B)(2)(i) and(ii),the annual AI pollock TAC, after subtracting first for the CDQ directed fishing allowance (10 percent) and second the ICA (1,600 mt), is allocated to the Aleut Corporation for a directed pollock fishery. In the AI subarea, the A season is allocated 40 percent of the ABC and the B season is allocated the remainder of the directed pollock fishery.2In the BS subarea, no more than 28 percent of each sector's annual DFA may be taken from the SCA before 12:00 noon, April 1. The remaining 12 percent of the annual DFA allocated to the A season may be taken outside of the SCA before 12:00 noon, April 1 or inside the SCA after 12:00 noon, April 1. If less than 28 percent of the annual DFA is taken inside the SCA before 12:00 noon, April 1, the remainder will be available to be taken inside the SCA after 12:00 noon, April 1.3Pursuant to § 679.20(a)(5)(i)(A)(4), not less than 8.5 percent of the DFA allocated to listed catcher/processors shall be available for harvest only by eligible catcher vessels delivering to listed catcher/processors.4Pursuant to § 679.20(a)(5)(i)(A)(4)(iii), the AFA unlisted catcher/processors are limited to harvesting not more than 0.5 percent of the catcher/processors sector's allocation of pollock.5Pursuant to § 679.20(a)(5)(i)(A)(6), NMFS establishes an excessive harvesting share limit equal to 17.5 percent of the sum of the non-CDQ pollock DFAs.6Pursuant to § 679.20(a)(5)(i)(A)(7), NMFS establishes an excessive processing share limit equal to 30.0 percent of the sum of the non-CDQ pollock DFAs.7The Bogoslof District is closed by the final harvest specifications to directed fishing for pollock. The amounts specified are for ICA only and are not apportioned by season or sector.Allocation of the Atka Mackerel TACs

Section 679.20(a)(8)(ii) allocates the Atka mackerel TACs to the Amendment 80 and BSAI trawl limited access sectors, after subtraction of the CDQ reserves, jig gear allocation, and ICAs for the BSAI trawl limited access sector and non-trawl gear (Table 4). The allocation of the ITAC for Atka mackerel to the Amendment 80 and BSAI trawl limited access sectors is established in Table 33 to part 679 and § 679.91.

Pursuant to § 679.20(a)(8)(i), up to 2 percent of the EAI and the BS Atka mackerel ITAC may be allocated to jig gear. The amount of this allocation is determined annually by the Council based on several criteria, including the anticipated harvest capacity of the jig gear fleet. The Council recommended, and NMFS approves, a 0.5 percent allocation of the Atka mackerel ITAC in the EAI and BS to the jig gear in 2010 and 2011. Based on the 2010 TAC of 23,800 mt after subtractions of the CDQ reserve and ICA, the jig gear allocation would be 106 mt for 2010. Based on the 2011 TAC of 20,900 mt after subtractions of the CDQ reserve and ICA, the jig gear allocation would be 93 mt for 2011.

Section 679.20(a)(8)(ii)(A) apportions the Atka mackerel ITAC into two equal seasonal allowances: The first seasonal allowance is made available for directed fishing from January 1 (January 20 for trawl gear) to April 15 (A season), and the second seasonal allowance is made available from September 1 to November 1 (B season). The jig gear allocation is not apportioned by season.

Pursuant to § 679.20(a)(8)(ii)(C)(1), the Regional Administrator will establish a harvest limit area (HLA) limit of no more than 60 percent of the seasonal TAC for the WAI and CAI Districts.

NMFS will establish HLA limits for the CDQ reserve and each of the three non-CDQ trawl sectors: The BSAI trawl limited access sector, the Amendment 80 limited access fishery, and an aggregate HLA limit applicable to all Amendment 80 cooperatives. NMFS will assign vessels in each of the three non-CDQ sectors that apply to fish for Atka mackerel in the HLA to an HLA fishery based on a random lottery of the vessels that apply (see§ 679.20(a)(8)(iii)(B)(1)). There is no allocation of Atka mackerel to the BSAI trawl limited access sector in the WAI. Therefore, no vessels in the BSAI trawl limited access sector will be assigned to the WAI HLA fishery.

Each trawl sector will have a separate lottery. A maximum of two HLA fisheries will be established in Area 542 for the BSAI trawl limited access sector. A maximum of four HLA fisheries will be established for vessels assigned to Amendment 80 cooperatives: a first and second HLA fishery in Area 542, and a first and second HLA fishery in Area 543. A maximum of four HLA fisheries will be established for vessels assigned to the Amendment 80 limited access fishery: A first and second HLA fishery in Area 542, and a first and second HLA fishery in Area 543. NMFS will initially open fishing in the HLA for the first HLA fishery in all three trawl sectors at the same time. The initial opening of fishing in the HLA will be based on the first directed fishing closure of Atka mackerel for the EAI and BS subarea for any one of the three trawl sectors allocated Atka mackerel TAC.

Table 4 lists these 2010 and 2011 amounts. The 2011 allocations for Atka mackerel between Amendment 80 cooperatives and the Amendment 80 limited access sector will not be known until eligible participants apply for participation in the program by November 1, 2010.

2010 allocation by areaEastern Aleutian District/Bering SeaCentral Aleutian DistrictWestern Aleutian District2011 allocation by areaEastern Aleutian District/Bering SeaCentral Aleutian DistrictWestern Aleutian DistrictTACn/a23,80029,60020,60020,90026,00018,100CDQ reserveTotal2,5473,1672,2042,2362,7821,937HLA5n/a1,9001,323n/a1,6691,162ICATotal757550757550Jig6Total106009300BSAI trawl limited accessTotal1,2641,58101,4801,8510A63279107409260HLA5n/a4740n/a5550B63279107409260HLA5n/a4740n/a5550Amendment 80 sectorsTotal19,80824,77618,34617,01621,29216,113A9,90412,3889,1738,50810,6468,057HLA5n/a7,4335,504n/a6,3874,834B9,90412,3889,1738,50810,6468,057HLA5n/a7,4335,504n/a6,3874,834Amendment 80 limited accessTotal10,52614,91311,310n/an/an/aA5,2637,4575,655n/an/an/aHLA5n/a4,4743,393n/an/an/aB5,2637,4575,655n/an/an/aHLA5n/a4,4743,393n/an/an/aAmendment 80 cooperativesTotal9,2829,8637,036n/an/an/aA4,6414,9323,518n/an/an/aHLA5n/a2,9592,111n/an/an/aB4,6414,9323,518n/an/an/aHLA5n/a2,9592,111n/an/an/a1Section 679.20(a)(8)(ii) allocates to the Amendment 80 and BSAI trawl limited access sectors the Atka mackerel TACs, after subtraction of the CDQ reserves, jig gear allocation, and ICAs. The allocation of the ITAC for Atka mackerel to the Amendment 80 and BSAI trawl limited access sectors is established in Table 33 to part 679 and § 679.91. The CDQ reserve is 10.7 percent of the TAC for use by CDQ participants (see§§ 679.20(b)(1)(ii)(C) and 679.31).2Regulations at §§ 679.20(a)(8)(ii)(A) and 679.22(a) establish temporal and spatial limitations for the Atka mackerel fishery.3The seasonal allowances of Atka mackerel are 50 percent in the A season and 50 percent in the B season.4The A season is January 1 (January 20 for trawl gear) to April 15 and the B season is September 1 to November 1.5Harvest Limit Area (HLA) limit refers to the amount of each seasonal allowance that is available for fishing inside the HLA (see§ 679.2). In the Central and Western Aleutian Districts, 60 percent of each seasonal allowance is available for fishing inside the HLA.6Section 679.20(a)(8)(i) requires that up to 2 percent of the Eastern Aleutian District and the Bering Sea subarea TAC be allocated to jig gear after subtraction of the CDQ reserve and ICA. The amount of this allocation is 0.5 percent. The jig gear allocation is not apportioned by season.Allocation of the Pacific Cod ITAC

Section 679.20(a)(7)(i) and (ii) allocates the Pacific cod TAC in the BSAI, after subtraction of 10.7 percent for the CDQ reserve, as follows: 1.4 percent to vessels using jig gear, 2.0 percent to hook-and-line and pot CVs less than 60 ft (18.3 m) length overall (LOA), 0.2 percent to hook-and-line CVs greater than or equal to 60 ft (18.3 m) LOA, 48.7 percent to hook-and-line catcher/processors, 8.4 percent to pot CVs greater than or equal to 60 ft (18.3 m) LOA, 1.5 percent to pot catcher/processors, 2.3 percent to AFA trawl catcher/processors, 13.4 percent to non-AFA trawl catcher/processors, and 22.1 percent to trawl CVs. The ICA for the hook-and-line and pot sectors will be deducted from the aggregate portion of Pacific cod TAC allocated to the hook-and-line and pot sectors. For 2010 and 2011, the Regional Administrator establishes an ICA of 500 mt based on anticipated incidental catch by these sectors in other fisheries. The allocation of the ITAC for Pacific cod to the Amendment 80 sector is established in Table 33 to part 679 and § 679.91. The 2011 allocations for Pacific cod between Amendment 80 cooperatives and the Amendment 80 limited access sector will not be known until eligible participants apply for participation in the program by November 1, 2010.

The Pacific cod ITAC is apportioned into seasonal allowances to disperse the Pacific cod fisheries over the fishing year (see§§ 679.20(a)(7) and 679.23(e)(5)). In accordance with § 679.20(a)(7)(iv)(B) and (C), any unused portion of a seasonal Pacific cod allowance will become available at the beginning of the next seasonal allowance.

The CDQ and non-CDQ season allowances by gear based on the 2010 and 2011 Pacific cod TACs are listed in Tables 5a and 5b based on the sector allocation percentages of Pacific cod set forth at §§ 679.20(a)(7)(i)(B) and 679.20(a)(7)(iv)(A); and the seasonal allowances of Pacific cod set forth at § 679.23(e)(5).

Sections 679.20(a)(4)(iii) and (iv) require the allocation of sablefish TACs for the BS and AI subareas between trawl and hook-and-line or pot gear. Gear allocations of the TACs for the BS subarea are 50 percent for trawl gear and 50 percent for hook-and-line or pot gear. Gear allocations of the TACs for the AI subarea are 25 percent for trawl gear and 75 percent for hook-and-line or pot gear. Section 679.20(b)(1)(ii)(B) requires apportionment of 20 percent of the hook-and-line and pot gear allocation of sablefish to the CDQ reserve. Additionally, § 679.20(b)(1)(ii)(D) requires apportionment of 7.5 percent of the trawl gear allocation of sablefish from the nonspecified reserves, established under § 679.20(b)(1)(i), to the CDQ reserve. The Council recommended that only trawl sablefish TAC be established biennially. The harvest specifications for the hook-and-line gear and pot gear sablefish Individual Fishing Quota (IFQ) fisheries will be limited to the 2010 fishing year to ensure those fisheries are conducted concurrently with the halibut IFQ fishery. Concurrent sablefish and halibut IFQ fisheries reduce the potential for discards of halibut and sablefish in those fisheries. The sablefish IFQ fisheries will remain closed at the beginning of each fishing year until the final specifications for the sablefish IFQ fisheries are in effect. Table 6 lists the 2010 and 2011 gear allocations of the sablefish TAC and CDQ reserve amounts.

Bering SeaTrawl1501,3951,1861051,2501,06394Hook-and-line/pot gear2501,3951,116279n/an/an/aTotal1002,7902,3023841,2501,06394Aleutian IslandsTrawl1255184403946539535Hook-and-line/pot gear2751,5521,242310n/an/an/aTotal1002,0701,682349465395351Except for the sablefish hook-and-line or pot gear allocation, 15 percent of TAC is apportioned to the reserve. The ITAC is the remainder of the TAC after the subtraction of these reserves.2For the portion of the sablefish TAC allocated to vessels using hook-and-line or pot gear, 20 percent of the allocated TAC is reserved for use by CDQ participants. The Council recommended that specifications for the hook-and-line gear sablefish IFQ fisheries be limited to one year.Allocation of the AI Pacific Ocean Perch, and BSAI Flathead Sole, Rock Sole, and Yellowfin Sole TACs

Sections 679.20(a)(10)(i) and (ii) require the allocation between the Amendment 80 sector and BSAI trawl limited access sector for AI Pacific ocean perch, and BSAI flathead sole, rock sole, and yellowfin sole TACs, after subtraction of 10.7 percent for the CDQ reserve and an ICA for the BSAI trawl limited access sector and vessels using non-trawl gear. The allocation of the ITAC for AI Pacific ocean perch, and BSAI flathead sole, rock sole, and yellowfin sole to the Amendment 80 sector is established in Tables 33 and 34 to part 679 and § 679.91. The 2011 allocations for Amendment 80 species between Amendment 80 cooperatives and limited access sector will not be known until eligible participants apply for participation in the program by November 1, 2010. Tables 7a and 7b lists the 2010 and 2011 allocations of the AI Pacific ocean perch, and BSAI flathead sole, rock sole, and yellowfin sole TACs.

Section 679.21(e) sets forth the BSAI PSC limits. Pursuant to § 679.21(e)(1)(iv) and (e)(2), the 2010 and 2011 BSAI halibut mortality limits are 3,675 mt for trawl fisheries and 900 mt for the non-trawl fisheries. Sections 679.21(e)(3)(i)(A)(2) and (e)(4)(i)(A) allocate 326 mt of the trawl halibut mortality limit and 7.5 percent, or 67 mt, of the non-trawl halibut mortality limit as the PSQ reserve for use by the groundfish CDQ program. Section 679.21(e)(1)(vi) specifies 29,000 fish as the 2010 and 2011 Chinook salmon PSC limit for the BS subarea pollock fishery. Section 679.21(e)(3)(i)(A)(3)(i) allocates 7.5 percent, or 2,175 Chinook salmon, as the PSQ reserve for the CDQ program and allocates the remaining 26,825 Chinook salmon to the non-CDQ fisheries. Section 679.21(e)(1)(viii) specifies 700 fish as the 2010 and 2011 Chinook salmon PSC limit for the AI subarea pollock fishery. Section 679.21(e)(3)(i)(A)(3)(i) allocates 7.5 percent, or 53 Chinook salmon, as the AI subarea PSQ for the CDQ program and allocates the remaining 647 Chinook salmon to the non-CDQ fisheries. Section 679.21(e)(1)(vii) specifies 42,000 fish as the 2010 and 2011 non-Chinook salmon PSC limit. Section 679.21(e)(3)(i)(A)(3)(ii) allocates 10.7 percent, or 4,494 non-Chinook salmon, as the PSQ for the CDQ program and allocates the remaining 37,506 non-Chinook salmon to the non-CDQ fisheries. The regulations and allocations of Chinook salmon are subject to change in 2011 pending approval of Amendment 91 to the FMP.

PSC limits for crab and herring are specified annually based on abundance and spawning biomass. Pursuant to § 679.21(e)(3)(i)(A)(1), 10.7 percent from each trawl gear PSC limit specified for crab is allocated from as a PSQ reserve for use by the groundfish CDQ program.

The red king crab mature female abundance is estimated from the 2009 survey data at 36.1 million red king crabs (http://www.afsc.noaa.gov/Publications/AFSC-TM/NOAA-TM-AFSC-201.pdf, Table 3.), and the effective spawning biomass is estimated at 70.4 million lb (http://www.cf.adfg.state.ak.us/region4/shellfsh/crabs/news_rel/2009/nr090930a.pdf). Based on the criteria set out at § 679.21(e)(1)(i), the 2010 and 2011 PSC limit of red king crab in Zone 1 for trawl gear is 197,000 animals. This limit derives from the mature female abundance of more than 8.4 million king crab and the effective spawning biomass estimate of more than 55 million lb (24,948 mt).

Section 679.21(e)(3)(ii)(B)(2) establishes criteria under which NMFS must specify an annual red king crab bycatch limit for the Red King Crab Savings Subarea (RKCSS). The regulations limit the RKCSS to up to 25 percent of the red king crab PSC limit based on the need to optimize the groundfish harvest relative to red king crab bycatch. In December 2009, the Council recommended, and NMFS approves, that the red king crab bycatch limit be equal to 25 percent of the red king crab PSC limit within the RKCSS (Table 8b).

Based on 2009 survey data, Tanner crab (Chionoecetes bairdi) abundance is estimated at 346 million animals. Given the criteria set out at § 679.21(e)(1)(ii), the calculated 2010 and 2011C. bairdicrab PSC limit for trawl gear is 830,000 animals in Zone 1 and 2,520,000 animals in Zone 2. These limits arederived from theC. bairdicrab abundance estimate being in excess of the 270 million animals for the Zone 1 allocation and 290 million animals for the Zone 2 allocation, but less than 400 million animals for both Zone allocations. These limits are specified in § 679.21(e)(1)(ii).

Pursuant to § 679.21(e)(1)(iii), the PSC limit for snow crab (C. opilio) is based on total abundance as indicated by the NMFS annual bottom trawl survey. TheC. opiliocrab PSC limit is set at 0.1133 percent of the BS abundance index if left unadjusted. However, if the abundance is less than 4.5 million animals, the minimum PSC limit will be 4,350,000 animals pursuant to § 679.21(e)(1)(iii)(A) and (B). Based on the 2009 survey estimate of 3.06 billion animals, the calculated limit is 4,350,000 animals.

Pursuant to § 679.21(e)(1)(v), the PSC limit of Pacific herring caught while conducting any trawl operation for BSAI groundfish is 1 percent of the annual eastern BS herring biomass. The best estimate of 2010 and 2011 herring biomass is 197,400 mt. This amount was derived using 2009 survey data and an age-structured biomass projection model developed by the Alaska Department of Fish and Game. Therefore, the herring PSC limit for 2010 and 2011 is 1,974 mt for all trawl gear as presented in Tables 8a and b.

Section 679.21(e)(3)(A) requires PSQ reserves to be subtracted from the total trawl PSC limits. The amounts of 2010 PSC limits assigned to the Amendment 80 and BSAI trawl limited access sectors are specified in Table 35 to part 679. The resulting allocation of PSC to CDQ PSQ, the Amendment 80 sector, and the BSAI trawl limited access fisheries are listed in Table 8a. Pursuant to § 679.21(e)(1)(iv) and § 679.91(d) through (f), crab and halibut trawl PSC assigned to the Amendment 80 sector is then sub-allocated to Amendment 80 cooperatives as PSC cooperative quota (CQ) and to the Amendment 80 limited access fishery as presented in Tables 8d and 8e. PSC CQ assigned to Amendment 80 cooperatives is not allocated to specific fishery categories. The 2011 PSC allocations between Amendment 80 cooperatives and the Amendment 80 limited access sector will not be known until eligible participants apply for participation in the program by November 1, 2010. Section 679.21(e)(3)(i)(B) requires the apportionment of each trawl PSC limit not assigned to Amendment 80 cooperatives into PSC bycatch allowances for seven specified fishery categories.

Section 679.21(e)(4)(i) authorizes the apportionment of the non-trawl halibut PSC limit into PSC bycatch allowances among six fishery categories. Table 8c lists the fishery bycatch allowances for the trawl and non-trawl fisheries.

Pursuant to section 3.6 of the BSAI FMP, the Council recommends and NMFS agrees, that certain specified non-trawl fisheries be exempt from the halibut PSC limit. As in past years after consultation with the Council, NMFS exempts pot gear, jig gear, and the sablefish IFQ hook-and-line gear fishery categories from halibut bycatch restrictions because (1) the pot gear fisheries have low halibut bycatch mortality, (2) halibut mortality for the jig gear fleet is assumed to be negligible because of the small size of the fishery and the selectivity of the gear, and (3) the sablefish and halibut IFQ fisheries have low halibut bycatch mortality because the IFQ program requires legal-size halibut to be retained by vessels using hook-and-line gear if a halibut IFQ permit holder or a hired master is aboard and is holding unused halibut IFQ (subpart D of 50 CFR part 679). In 2009, total groundfish catch for the pot gear fishery in the BSAI was approximately 16,160 mt, with an associated halibut bycatch mortality of about 1.3 mt. The 2009 jig gear fishery harvested about 44 mt of groundfish. Most vessels in the jig gear fleet are less than 60 ft (18.3 m) LOA and thus are exempt from observer coverage requirements. As a result, observer data are not available on halibut bycatch in the jig gear fishery. However, a negligible amount of halibut bycatch mortality is assumed because of the selective nature of jig gear and the low mortality rate of halibut caught with jig gear and released.

Section 679.21(e)(5) authorizes NMFS, after consultation with the Council, to establish seasonal apportionments of PSC amounts for the BSAI trawl limited access and Amendment 80 limited access sectors in order to maximize the ability of the fleet to harvest the available groundfish TAC and to minimize bycatch. The factors to be considered are (1) Seasonal distribution of prohibited species, (2) seasonal distribution of target groundfish species, (3) PSC bycatch needs on a seasonal basis relevant to prohibited species biomass, (4) expected variations in bycatch rates throughout the year, (5) expected start of fishing effort, and (6) economic effects of seasonal PSC apportionments on industry sectors. The Council recommended and NMFS approves the seasonal PSC apportionments in Tables 8c and 8e to maximize harvest among gear types, fisheries, and seasons while minimizing bycatch of PSC based on the above criteria.

To monitor halibut bycatch mortality allowances and apportionments, the Regional Administrator uses observed halibut bycatch rates, DMRs, and estimates of groundfish catch to project when a fishery's halibut bycatch mortality allowance or seasonal apportionment is reached. The DMRs are based on the best information available, including information contained in the annual SAFE report.

NMFS approves the halibut DMRs developed and recommended by the International Pacific Halibut Commission (IPHC) and the Council for the 2010 and 2011 BSAI groundfish fisheries for use in monitoring the 2010 and 2011 halibut bycatch allowances (seeTables 8a-e). The IPHC developed these DMRs for the 2010 and 2011 BSAI fisheries using the 10-year mean DMRs for those fisheries. The IPHC will analyze observer data annually and recommend changes to the DMRs when a fishery DMR shows large variation from the mean. The document justifying these DMRs is available in Appendix 2 in the final 2009 SAFE report dated November 2009 (seeADDRESSES). Table 9 lists the 2010 and 2011 DMRs.

In accordance with § 679.20(d)(1)(i), the Regional Administrator may establish a DFA for a species or species group if the Regional Administrator determines that any allocation or apportionment of a target species or “other species” category has been or will be reached. If the Regional Administrator establishes a DFA, and that allowance is or will be reached before the end of the fishing year, NMFS will prohibit directed fishing for that species or species group in the specified subarea or district (see§ 697.20(d)(1)(iii)). Similarly, pursuant to § 679.21(e), if the Regional Administrator determines that a fishery category's bycatch allowance of halibut, red king crab,C. bairdicrab, orC. opiliocrab for a specified area has been reached, the Regional Administrator will prohibit directed fishing for each species in that category in the specified area.

Based upon historic catch patterns and anticipated fishing activity, the Regional Administrator has determined that the groundfish allocation amounts in Table 10 will be necessary as incidental catch to support other anticipated groundfish fisheries for the 2010 and 2011 fishing years. Consequently, in accordance with § 679.20(d)(1)(i), the Regional Administrator establishes the DFA for the species and species groups in Table 10 as zero. Therefore, in accordance with § 679.20(d)(1)(iii), NMFS is prohibiting directed fishing for these sectors and species in the specified areas effective at 1200 hrs, A.l.t., March 11, 2010, through 2400 hrs, A.l.t., December 31, 2011. Also, for the BSAI trawl limited access and the Amendment 80 limited access sectors, bycatch allowances of halibut, red king crab,C. bairdicrab, andC. opiliocrab listed in Table 10 are insufficient to support directed fisheries. Therefore, in accordance with § 679.21(e)(7), NMFS is prohibiting directed fishing for these sectors and fishery categories in the specified areas effective at 1200 hrs, A.l.t., March 11, 2010, through 2400 hrs, A.l.t., December 31, 2011.

Table 10—2010 and 2011 Directed Fishing Closures1[Groundfish and halibut amounts are in metric tons. Crab amounts are in number of animals]AreaSectorSpecies2010

Closures implemented under the 2009 and 2010 BSAI harvest specifications for groundfish (74 FR 7359, February 17, 2009) remain effective under authority of these final 2010 and 2011 harvest specifications, and are posted at the following Web sites:http://alaskafisheries.noaa.gov/index/infobulletins/infobulletins.asp?Yr=2010,andhttp://alaskafisheries.noaa.gov/2010/status.htm.While these closures are in effect, the maximum retainable amounts at § 679.20(e) and (f) apply at any time during a fishing trip. These closures to directed fishing are in addition to closures and prohibitions found in regulations at 50 CFR part 679.

Central Gulf of Alaska Rockfish Pilot Program (Rockfish Program)

On June 6, 2005, the Council adopted the Rockfish Program to meet the requirements of Section 802 of the Consolidated Appropriations Act of 2004 (Pub. L. 108-199). The basis for the BSAI fishing prohibitions and the CV BSAI Pacific cod sideboard limits of the Rockfish Program are discussed in detail in the final rule to Amendment 68 to the Fishery Management Plan for Groundfish of the Gulf of Alaska (71 FR 67210, November 20, 2006). Pursuant to § 679.82(d)(6)(i), the CV BSAI Pacific cod sideboard limit is 0.0 mt. Therefore, in accordance with § 679.82(d)(7)(ii), NMFS is prohibiting directed fishing for BSAI Pacific cod in July for CVs under the Rockfish Program sideboard limitations.

Listed AFA Catcher/Processor Sideboard Limits

Pursuant to § 679.64(a), the Regional Administrator is responsible for restricting the ability of listed AFA catcher/processors to engage in directed fishing for groundfish species other than pollock to protect participants in other groundfish fisheries from adverse effects resulting from the AFA and from fishery cooperatives in the directed pollock fishery. The basis for these sideboard limits is described in detail in the final rules implementing the major provisions of the AFA (67 FR 79692, December 30, 2002) and Amendment 80 (72 FR 52668, September 14, 2007). Table 11 lists the 2010 and 2011 catcher/processor sideboard limits.

All harvest of groundfish sideboard species by listed AFA catcher/processors, whether as targeted catch or incidental catch, will be deducted from the sideboard limits in Table 11. However, groundfish sideboard species that are delivered to listed catcher/processors by CVs will not be deducted from the 2010 and 2011 sideboard limits for the listed AFA catcher/processors.

2010 ITAC available to trawl C/Ps12010 AFA C/P side-board limit2011 ITAC available to trawl C/Ps12011 AFA C/P side-board limitSablefish trawlBS84970.0161,186191,06317AI0145044003950Atka mackerelCentral AIA season2n/an/a0.11513,2171,52011,6091,335HLA limit3n/an/an/a7,9309126,965801B season2n/an/a0.11513,2171,52011,6091,335HLA limit3n/an/an/a7,9309126,965801Western AIA season2n/an/a0.29,1981,8408,0821,616HLA limit3n/an/an/a5,5191,1044,849970B season2n/an/a0.29,1981,8408,0821,616HLA limit3n/an/an/a5,5191,1044,849970Yellowfin sole4BSAI100,192435,7880.23195,567n/a190,209n/aRock soleBSAI6,317169,3620.03780,3702,97480,3702,974Greenland turbotBS12117,3050.0073,587253,14522AI234,9870.0051,61581,4207Arrowtooth flounderBSAI7633,9870.00263,75012863,750128Flathead soleBSAI1,92552,7550.03653,5801,92953,5801,929Alaska plaiceBSAI149,4380.00142,5004342,50043Other flatfishBSAI3,05852,2980.05814,70585314,705853Pacific ocean perchBS124,8790.0023,25673,2226Eastern AI1256,1790.023,768753,73375Central AI35,6980.0013,81343,7774Western AI5413,5980.0045,840235,78723Northern rockfishBSAI9113,0400.0077,240517,29051Shortraker rockfishBSAI502,8110.01838773877Rougheye rockfishBSAI502,8110.0185471053110Other rockfishBS186210.0294851448514AI228060.0274721347213SquidBSAI733,3280.0221,675371,67537Other speciesBSAI55368,6720.00842,50034042,5003401Aleutian Islands Pacific ocean perch, and BSAI Atka mackerel, flathead sole, rock sole, yellowfin sole are multiplied by the remainder of the TAC after the subtraction of the CDQ reserve under § 679.20(b)(1)(ii)(C).2The seasonal apportionment of Atka mackerel in the open access fishery is 50 percent in the A season and 50 percent in the B season. Listed AFA catcher/processors are limited to harvesting no more than zero in the Eastern Aleutian District and Bering Sea subarea, 20 percent of the annual ITAC specified for the Western Aleutian District, and 11.5 percent of the annual ITAC specified for the Central Aleutian District.3Harvest Limit Area (HLA) limit refers to the amount of each seasonal allowance that is available for fishing inside the HLA (see§ 679.2). In 2010 and 2011, 60 percent of each seasonal allowance is available for fishing inside the HLA in the Western and Central Aleutian Districts.4Section 679.64(a)(1)(v) exempts AFA catcher/processors from a yellowfin sole sideboard limit because the 2010 and 2011 aggregate ITAC of yellowfin sole assigned to the Amendment 80 sector and BSAI trawl limited access sector (195,567 mt in 2010 and 190,209 mt in 2011) is greater than 125,000 mt.

Section 679.64(a)(2)—and Tables 40 and 41 of part 679—establish a formula for calculating PSC sideboard limits for listed AFA catcher/processors. The basis for these sideboard limits is described in detail in the final rules implementing the major provisions of the AFA (67 FR 79692, December 30, 2002) and Amendment 80 (72 FR 52668, September 14, 2007).

PSC species listed in Table 12 that are caught by listed AFA catcher/processors participating in any groundfish fishery other than pollock will accrue against the 2010 and 2011 PSC sideboard limits for the listed AFA catcher/processors. Section 679.21(e)(3)(v) authorizes NMFS to close directed fishing for groundfish other than pollock for listed AFA catcher/processors once a 2010 or 2011 PSC sideboard limit listed in Table 12 is reached.

Crab or halibut PSC caught by listed AFA catcher/processors while fishing for pollock will accrue against the bycatch allowances annually specified for either the midwater pollock or the pollock/Atka mackerel/“other species” fishery categories under regulations at § 679.21(e)(3)(iv).

Table 12—Final 2010 and 2011 BSAI AFA Listed Catcher/Processor Prohibited Species Sideboard LimitsPSC species and area1Ratio of PSC catch to total PSC2010 and 2011 PSC available to trawl vessels after subtraction of PSQ22010 and 2011 C/P sideboard limit2Halibut mortality BSAIn/an/a286Red king crab zone 10.007175,9211,231C. opilio(COBLZ)0.1533,884,550594,336C. bairdi:Zone 10.14741,190103,767Zone 20.052,250,360112,5181Refer to § 679.2 for definitions of areas.2Halibut amounts are in metric tons of halibut mortality. Crab amounts are in numbers of animals.AFA CV Sideboard Limits

Pursuant to § 679.64(a), the Regional Administrator is responsible for restricting the ability of AFA CV to engage in directed fishing for groundfish species other than pollock to protect participants in other groundfish fisheries from adverse effects resulting from the AFA and from fishery cooperatives in the directed pollock fishery. Section 679.64(b) establishes a formula for setting AFA CV groundfish and PSC sideboard limits for the BSAI. The basis for these sideboard limits is described in detail in the final rules implementing the major provisions of the AFA (67 FR 79692, December 30, 2002) and Amendment 80 (72 FR 52668, September 14, 2007). Tables 13 and 14 list the 2010 and 2011 AFA CV sideboard limits.

All catch of groundfish sideboard species made by non-exempt AFA CVs, whether as targeted catch or incidental catch, will be deducted from the 2010 and 2011 sideboard limits listed in Table 13.

Halibut and crab PSC limits listed in Table 14 that are caught by AFA CVs participating in any groundfish fishery for groundfish other than pollock will accrue against the 2010 and 2011 PSC sideboard limits for the AFA CVs. Sections 679.21(d)(8) and 679.21 (e)(3)(v) authorize NMFS to close directed fishing for groundfish other than pollock for AFA CVs once a 2010 or 2011 PSC sideboard limit listed in Table 14 is reached. The PSC that is caught by AFA CVs while fishing for pollock in the BSAI will accrue against the bycatch allowances annually specified for either the midwater pollock or the pollock/Atka mackerel/“other species” fishery categories under regulations at § 679.21(e)(3)(iv).

Based upon historical catch patterns, the Regional Administrator has determined that many of the AFA CP and CV sideboard limits listed in Tables 15 and 16 are necessary as incidental catch to support other anticipated groundfish fisheries for the 2010 fishing year. In accordance with § 679.20(d)(1)(iv), the Regional Administrator establishes the sideboard limits listed in Tables 15 and 16 as DFAs. Because many of these DFAs will be reached before the end of the year, the Regional Administrator has determined, in accordance with § 679.20(d)(1)(iii), that NMFS prohibit directed fishing by listed AFA catcher/processors for the species in the specified areas set out in Table 15 and directed fishing by non-exempt AFA CVs for the species in the specified areas set out in Table 16.

NMFS received two letters of comment, from an environmental organization and an individual, which included four distinct comments, in response to the proposed 2010 and 2011 harvest specifications. These comments are summarized and responded to below.

Comment 1:The commenter raises general concerns about NMFS' management of fisheries, asserting that fishery policies have not benefited American citizens. The commenter also asserts that NMFS does not enforce fisheries regulations and should not be allowed to manage commercial fisheries.

Response:This comment is not specifically related to the proposed rule. The comment recommends broad changes to fisheries management and provides opinions of the Federal Government's general management of marine resources that are outside of the scope of this action. The comment did not raise new relevant issues or concerns that have not been explained in the preamble to the proposed rule or addressed in the SAFE reports and otheranalyses prepared to support the BSAI groundfish harvest specifications.

Response:The harvest specifications process is intended to foster conservation and management of marine resources. This process incorporates the best available scientific information from the most recent stock assessment and fisheries evaluation reports prepared by multi-disciplinary teams of scientists. Such reports contain the most recent scientific information on the condition of various groundfish stocks, as well as the condition of other ecosystem components and economic data about Alaska groundfish fisheries. This suite of information allows the Council to make scientifically-based recommendations for annual catch limits that do not exceed, on a species by species basis, the OFLs and ABCs established for each BSAI target species managed under the FMP.

Comment 3:Overfishing is having a detrimental effect on the health of oceans and coastal communities.

Response:This comment does not specially address the proposed 2010 and 2011 harvest specifications for the BSAI. None of the species encompassed by these harvest specifications are overfished or subject to overfishing.

Comment 4:The decline of pollock stocks is having a detrimental impact on marine mammals.

Response:The most recent pollock stock surveys indicate that BSAI pollock stocks in this management area are not overfished and are unlikely to be overfished in the near future. The BS stock is expected to increase as recent cohorts mature and enter the fishery. Furthermore, the EIS (seeADDRESSES) prepared for the Alaska groundfish fisheries newest specifications process identified a preferred harvest strategy for groundfish and concluded that the preferred harvest strategy, under existing regulations, would have no lasting adverse impacts on marine mammals and other marine life. Additionally, pursuant to the Endangered Species Act, NMFS consults to ensure that federal actions, including this one, do not jeopardize the continued existence of any endangered or threatened marine mammal species.

Classification

NMFS has determined that these final harvest specifications are consistent with the FMP and with the Magnuson-Stevens Act and other applicable laws.

This action is authorized under 50 CFR 679.20 and is exempt from review under Executive Order 12866.

NMFS prepared a Final EIS for this action (seeADDRESSES) and made it available to the public on January 12, 2007 (72 FR 1512). On February 13, 2007, NMFS issued the ROD for the Final EIS. In January 2010, NMFS prepared a Supplemental Information Report (SIR) for this action. Copies of the Final EIS, ROD, and SIR for this action are available from NMFS (seeADDRESSES). The Final EIS analyzes the environmental consequences of the groundfish harvest specifications and alternative harvest strategies on resources in the action area. The SIR evaluates the need to prepare a Supplemental EIS (SEIS) for the 2010 and 2011 groundfish harvest specifications.

A SEIS should be prepared if (1) the agency makes substantial changes in the proposed action that are relevant to environmental concerns, or (2) significant new circumstances or information exist relevant to environmental concerns and bearing on the proposed action or its impacts (40 CFR 1502.9(c)(1)). After reviewing the information contained in the SIR and SAFE reports, the Administrator, Alaska Region, has determined that (1) approval of the 2010 and 2011 harvest specifications, which were set according to the preferred harvest strategy in the Final EIS, do not constitute a change in the action; and (2) there are no significant new circumstances or information relevant to environmental concerns and bearing on the action or its impacts. Additionally, the 2010 and 2011 harvest specifications will result in environmental impacts within the scope of those analyzed and disclosed in the Final EIS. Therefore, supplemental National Environmental Protection Act (NEPA) documentation is not necessary to implement the 2010 and 2011 harvest specifications.

The proposed harvest specifications were published in theFederal Registeron December 2, 2009 (74 FR 63100). An Initial Regulatory Flexibility Analysis (IRFA) was prepared to evaluate the impacts on small entities of alternative harvest strategies for the groundfish fisheries in the Exclusive Economic Zone (EEZ) off Alaska on small entities. The public comment period ended on January 4, 2010. No comments were received regarding the IRFA or the economic impacts of this action. A FRFA was prepared pursuant to the Regulatory Flexibility Act of 1980, as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 601-612). Copies of the IRFA and FRFA prepared for this action are available from NMFS, Alaska Region (seeADDRESSES).

Each year, NMFS promulgates a rule establishing the harvest specifications pursuant to the adopted harvest strategy. While the harvest specification numbers may change from year to year, the harvest strategy for establishing those numbers does not change. Therefore, the impacts discussed in the FRFA are essentially the same. NMFS considers the annual rulemakings establishing the harvest specification numbers to be a series of closely related rules stemming from the harvest strategy and representing one rule for purposes of the Regulatory Flexibility Act (5 U.S.C. 605(c)). A summary of the FRFA follows.

The action analyzed in the FRFA is the adoption of a harvest strategy to govern the catch of groundfish in the BSAI. The preferred alternative is the status quo harvest strategy in which TACs fall within the range of ABCs recommended by the Council's harvest specification process and TACs recommended by the Council. This action is taken in accordance with the FMP prepared by the Council pursuant to the Magnuson-Stevens Act. Significant issues raised by public comment are addressed in the preamble and not repeated here.

The directly regulated small entities include approximately 810 small CVs, fewer than 20 small CPs, and six CDQ groups. The entities directly regulated by this action are those that harvest groundfish in the EEZ of the BSAI and in parallel fisheries within State waters. These include entities operating CV and CP vessels within the action area, and entities receiving direct allocations of groundfish. CVs and CPs were considered to be small entities if their annual gross receipts from all economic activities, including the revenue of their affiliated operations, totaled $4 million per year or less. Data from 2006 were the most recent available to determine the number of small entities.

Estimates of first wholesale gross revenues for the BSAI non-CDQ and CDQ sectors were used as indices of the potential impacts of the alternative harvest strategies on small entities. Revenues were projected to decline from 2006 levels in 2007 and 2008 under the preferred alternative due to declines in ABCs for economically key groundfish species.

The preferred alternative (Alternative 2) was compared to four other alternatives. These included Alternative 1, which would have set TACs to generate fishing rates equal to the maximum permissible ABC (if the full TAC were harvested), unless the sum of TACs exceeded the BSAI optimum yield, in which case TACs would havebeen limited to the optimum yield. Alternative 3 would have set TACs to produce fishing rates equal to the most recent five-year average fishing rates. Alternative 4 would have set TACs to equal the lower limit of the BSAI optimum yield range. Alternative 5—the “no action” alternative—would have set TACs equal to zero.

Alternative 2 was chosen instead of alternatives 3, 4, and 5, which produced smaller first wholesale revenue indices for both non-CDQ and CDQ sectors than Alternative 2. Moreover, higher Alternative 1 TACs are associated with maximum permissible ABCs, which may be higher than Alternative 2 TACs, while Alternative 2 TACs are associated with the ABCs that have been recommended to the Council, by the Plan Team, and the SSC, and more fully consider other potential biological issues. For these reasons, Alternative 2 is the preferred alternative.

This action does not modify recordkeeping or reporting requirements, or duplicate, overlap, or conflict with any federal rules.

Harvests are controlled by the enforcement of total allowable catch (TAC) limits, and prohibited species catch (PSC) limits, apportionments of those limits among seasons and areas, and allocations of the limits among fishing fleets. TAC seasonal apportionments and allocations are specified by regulations at 50 CFR part 679.

There are no significant alternatives to the proposed rule that accomplish the stated objectives, are consistent with applicable statutes, and that would minimize the economic impact of the proposed rule on small entities.

Adverse impacts on marine mammals resulting from fishing activities conducted under these harvest specifications are discussed in the Final EIS (seeADDRESSES).

Pursuant to 5 U.S.C. 553(d)(3), the Assistant Administrator for Fisheries, NOAA, finds good cause to waive the 30-day delay in effectiveness for this rule. Plan Team review occurred in November 2009, and Council consideration and recommendations occurred in December 2009. Accordingly, NMFS review could not begin until January 2010. For all fisheries not currently closed because the TACs established under the 2009 and 2010 final harvest specifications (74 FR 7359, February 17, 2009) were not reached, the possibility exists that they would be closed prior to the expiration of a 30-day delayed effectiveness period, if implemented, because their TACs could be reached. Certain fisheries, such as those for pollock, Pacific cod, and Atka mackerel are intensive, fast-paced fisheries. Other fisheries, such as those for flatfish, rockfish, and “other species,” are critical as directed fisheries and as incidental catch in other fisheries. U.S. fishing vessels have demonstrated the capacity to catch the TAC allocations in these fisheries. Any delay in allocating the final TACs in these fisheries would cause confusion to the industry and potential economic harm through unnecessary discards. Determining which fisheries may close is impossible because these fisheries are affected by several factors that cannot be predicted in advance, including fishing effort, weather, movement of fishery stocks, and market price. Furthermore, the closure of one fishery has a cascading effect on other fisheries by freeing-up fishing vessels, allowing them to move from closed fisheries to open ones, increasing the fishing capacity in those open fisheries and causing them to close at an accelerated pace.

In fisheries subject to declining sideboards, a failure to implement the updated sideboards before initial season's end could preclude the intended economic protection to the non-sideboarded sectors. Conversely, in fisheries with increasing sideboards, economic benefit could be precluded to the sideboarded sectors.

If the final harvest specifications are not effective by March 6, 2010, which is the start of the 2010 Pacific halibut season as specified by the IPHC, the hook-and-line sablefish fishery will not begin concurrently with the Pacific halibut season. This would result in confusion for the industry and economic harm from unnecessary discard of sablefish that are caught along with Pacific halibut as both hook-and-line sablefish and Pacific halibut are managed under the same IFQ program. Immediate effectiveness of the final 2010 and 2011 harvest specifications will allow the sablefish IFQ fishery to begin concurrently with the Pacific halibut IFQ season. Also, the immediate effectiveness of this action is required to provide consistent management and conservation of fishery resources based on the best available scientific information, and to give the fishing industry the earliest possible opportunity to plan its fishing operations.

The preceding consequences of delaying the rule would undermine the rule's intent. Therefore NMFS finds good cause to waive the 30-day delay in effectiveness under 5 U.S.C. 553(d)(3).

Small Entity Compliance Guide

The following information is a plain language guide to assist small entities in complying with this final rule as required by the Small Business Regulatory Enforcement Fairness Act of 1996. This final rule's primary purpose is to announce the final 2010 and 2011 harvest specifications and prohibited species bycatch allowances for the groundfish fisheries of the BSAI. This action is necessary to establish harvest limits and associated management measures for groundfish during the 2010 and 2011 fishing years and to accomplish the goals and objectives of the FMP. This action affects all fishermen who participate in the BSAI fisheries. The specific amounts of OFL, ABC, TAC, and PSC are provided in tables to assist the reader. NMFS will announce closures of directed fishing in theFederal Registerand information bulletins released by the Alaska Region. Affected fishermen should keep themselves informed of such closures.

This proposed rule would amend the airworthiness standards for fatigue tolerance evaluation (FTE) of transport category rotorcraft metallic structures. This proposal would revise the FTE safety requirements to address advances in structural fatigue substantiation technology for metallic structures. This provides an increased level of safety by avoiding or reducing catastrophic fatigue failures of metallic structures. These increased safety requirements would help ensure that should serious accidental damage occur during manufacturing or within the operational life of the rotorcraft, the remaining structure could withstand, without failure, any fatigue loads that are likely to occur, until the damage is detected or the part is replaced. Besides improving the safety standards for FTE of all principal structural elements (PSEs), the proposed amendment would be harmonized with international standards.

DATES:

Send your comments on or before June 10, 2010.

ADDRESSES:

You may send comments identified by Docket Number FAA-2009-0413 using any of the following methods:

•Hand Delivery or Courier:Bring comments to Docket Operations in Room W12-140 of the West Building Ground Floor at 1200 New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

•Fax:Fax comments to Docket Operations at 202-493-2251.

Privacy:The FAA will post all comments we receive, without change, tohttp://www.regulations.gov,including any personal information you provide. Using the search function of the docket Web site, anyone can find and read the electronic form of all comments received into any of the dockets, including the name of the individual sending the comment (or signing the comment for an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in theFederal Registerpublished on April 11, 2000 (65 FR 19477-78) or you may visithttp://DocketsInfo.dot.gov.

Docket:To read documents or comments received, go tohttp://www.regulations.govand follow the online instructions for accessing the docket. Or, go to Docket Operations in Room W12-140 of the West Building Ground Floor at 1200 New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

Later in this preamble under the Additional Information section, there is a discussion of how you can comment on this proposal and how the FAA will handle your comments. Included in this discussion is related information about the docket handling. There is a discussion on how you can get a copy of related rulemaking documents.

Authority for This Rulemaking

The FAA's authority to issue rules on aviation safety is found in Title 49 of the United States Code. Subtitle I, section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority.

This rulemaking is issued under the authority described in subtitle VII, part A, subpart III, section 44701, “General Requirements,” section 44702, “Issuance of Certificates,” and section 44704, “Type Certificates, Production Certificates, and Airworthiness Certificates.” Under section 44701, the FAA is charged with prescribing regulations and minimum standards for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. Under section 44702, the Administrator may issue various certificates including type certificates, production certificates, air agency certificates, and airworthiness certificates. Under section 44704, the Administrator must issue type certificates for aircraft, aircraft engines, propellers, and specified appliances when the Administrator finds the product is properly designed and manufactured, performs properly, and meets the regulations and minimum standards prescribed under section 44701(a). This regulation is within the scope of these authorities because it would promote safety by updating the existing minimum prescribed standards, used during the type certification process, to address advances in metallic structural fatigue substantiation technology. It would also harmonize this standard with international standards for evaluating the fatigue strength of transport category rotorcraft metallic primary structural elements.

Background

Rotorcraft fatigue strength reduction or failure may occur because of aging, temperature, moisture absorption, impact damage, or other factors. Since a reduction in strength of any primary structural element can lead to a catastrophic failure, it is important to perform fatigue tolerance evaluations.

Fatigue tolerance evaluation provides a strength assessment of primarystructural elements (PSEs). It requires the applicant to evaluate the strength of various rotorcraft components including, but not limited to, rotors, rotor drive systems between the engines and the main and tail rotor hubs, controls, fuselage, fixed and movable control surfaces, engine and transmission mountings, landing gear, and their related primary attachments. Fatigue tolerance evaluations of PSEs are performed to determine appropriate retirement lives and inspections to avoid catastrophic failure during the operational life of the rotorcraft.

Advances in structural fatigue substantiation technology for metallic structures are not addressed in current regulations. The current regulations do not consider the advances in the safe-life methodology, and developments in crack growth methodology to address rotorcraft unique characteristics. This proposed rule would address those advances and amend the airworthiness standards for fatigue tolerance evaluation (FTE) of transport category rotorcraft metallic structures. This would increase the level of safety by avoiding or reducing catastrophic fatigue failures of metallic structures.

Fatigue Evaluation Techniques and Requirements

In the 1950s, safe-life methodology to establish retirement lives, such as that described in AC 27-1B, MG 11, was used to evaluate the occurrence of fatigue conditions in rotorcraft dynamic components. Historically, application of this methodology has been successful in providing satisfactory reliability for transport category rotorcraft. In addition, manufacturers would include routine inspections in their maintenance programs to detect damage, such as scratches, corrosion, wear, or cracks. These inspections were not based on analysis or tests, but rather on experience with similar designs, engineering judgment, and good design practices. The inspections helped minimize the effect of damage when the rotorcraft was being operated.

In the 1980s, industry recognized that a higher reliability for fatigue critical structural components might be achieved by considering the strength reducing effects of damage that can occur during manufacture or operation. About that same time, rotorcraft manufacturers were introducing advanced composite materials for fatigue critical components in their rotorcraft.

The introduction of composites led manufacturers and regulatory authorities to develop a more robust safe-life methodology by considering the specific static and fatigue-strength reduction effects due to aging, temperature, moisture absorption, impact damage, and other accepted industry practices. Furthermore, where clearly visible damage resulted from impact or other sources, inspection programs were developed to maintain safety.

With these developments, crack growth methodology has been successfully used for solving short-term airworthiness issues in metallic structures of rotorcraft and as the certification basis for civil and military transport aircraft applications. These advances in design, analytical methods, and other industry practices have made it feasible to address certain types of damage that could result in fatigue failure.

Consistent with these technological advancements, the regulatory requirements of § 29.571 were substantially revised by Amendment 29-28 (54 FR 43930, October 27, 1989).

While many years have passed since the introduction of these regulatory requirements, Amendment 29-28 has rarely been used for certification of completely new rotorcraft designs, because there have been only a limited number of new rotorcraft designs since 1989, when that amendment became effective. Even though there have been a limited number of new rotorcraft designs, the rotorcraft community's general understanding of rotorcraft fatigue tolerance evaluation has developed considerably. Also, there has been much discussion within the technical community about the meaning of Amendment 29-28 and the merits of its prescribed fatigue tolerance methodologies.

These methodologies, discussed in Amendment 29-28, have been the subject of a series of meetings between the FAA, the rotorcraft industry, and the Technical Oversight Group for Aging Aircraft (TOGAA). These meetings and industry's position concerning rotorcraft fatigue and damage tolerance were documented in a White Paper, “Rotorcraft Fatigue and Damage Tolerance,” which is located in the docket (FAA-2009-0413).

The rotorcraft industry White Paper recommended that safe-life methods should be complemented by damage tolerance methods, but also recommended retention of the flaw tolerant safe-life method, introduced in Amendment 29-28, as an available option. However, in 1999, TOGAA recommended that current safe-life methods be complemented by damage tolerance assessment methods and that the flaw tolerant safe-life method be removed from the regulations. Since both groups recommended changes, the FAA decided to consider revision of the regulations.

The FAA tasked the Aviation Rulemaking Advisory Committee (ARAC) in 1991 to study the need to revise the regulations on fatigue evaluation in light of advancements in technology and operational procedures and to develop regulatory recommendations.

History of Aviation Rulemaking Advisory Committee (ARAC)

The ARAC was established on February 5, 1991 by notice in theFederal Register(56 FR 2190, January 22, 1991), to assist the FAA in the rulemaking process by providing advice from the private sector on major regulatory issues affecting aviation safety. The ARAC includes representatives of manufacturers, air carriers, general aviation, industry associations, labor groups, universities, and the general public. The ARAC's formation has given the FAA added opportunities to seek information directly from significantly affected parties who meet and exchange ideas about proposed and existing rules that should be created, revised, or eliminated.

Following an announcement in theFederal Register(65 FR 17936, April 5, 2000), the FAA chartered an ARAC Working Group to study and make appropriate recommendations on whether the FAA should issue new or revised airworthiness standards on fatigue evaluation of transport category rotorcraft metallic structures.

The working group, co-chaired by representatives from a U.S. manufacturer and a European manufacturer, included technical specialists knowledgeable of fatigue evaluation of rotorcraft structures. This broad participation is consistent with FAA policy to have all known interested parties involved as early as practicable in the rulemaking process.

The working group evaluated the industry White Paper, TOGAA's recommendations, and the continuing activities and results of rotorcraft damage tolerance research and development. Consequently, the working group recommended changes to the fatigue evaluation requirements for transport category rotorcraft found in 14 CFR 29.571 to address advances in technology and damage tolerance assessment methodologies. The ARAC accepted those recommendations and presented them to the FAA. This proposed rule is consistent with the ARAC's recommendations.

Statement of the Issues

Before Amendment 29-28, there was no requirement to assess the impact of damage on the fatigue performance of any rotorcraft structure. The strategy used to manage fatigue was limited to retirement of the rotorcraft part or component before the probability of crack initiation became significant, and the “safe-life” method was used to establish retirement times.

It was generally agreed, based on in-service experience that not accounting for damage could be a serious shortcoming. Therefore, Amendment 29-28 required consideration of damage when performing fatigue evaluations unless it is established that for a particular structure damage consideration cannot be achieved within the limitations of geometry, inspectability, or good design practice. Amendment 29-28 also prescribed two new methods to account for damage (“flaw tolerant safe-life” and “fail-safe”). These are referred to as flaw tolerant methods. Amendment 29-28 also retained the original (“safe-life”) method to be used if either of the two new methods requiring damage consideration was not achievable within the limitations of geometry, inspectability, or good design practice.

Within the context of current § 29.571, the “flaw tolerant safe-life” method and the “fail-safe” method are considered equivalent options. The “flaw tolerant safe-life” method is based on crack initiation time in purposely “flawed” principal structural elements (PSEs) and results in a determination of retirement life. The flaw tolerant “fail-safe” method is based on a crack growth life in a purposely “flawed” PSE and results in inspection requirements.

The “safe-life” method is based on a crack initiation time in a “non-flawed” PSE and results in a retirement life. Although the “safe-life” method does not explicitly account for any damage, under current § 29.571, it is the prescribed default fatigue evaluation method if the applicant shows that neither of the flaw tolerant methods can be achieved within the limitations of geometry, inspectability, or good design practice.

One of the primary issues addressed by the working group was the equivalency of the two flaw tolerant methods. While both can be used to address damage, their equivalency, from a technical perspective, is difficult to evaluate without specific factual details. To address this concern, the working group considered two issues, establishing inspection requirements using the flaw tolerant safe-life method, and establishing retirement times using the fail-safe method. While both are theoretically possible, an evaluation of the effectiveness is not possible without considering the details of a specific application. Additionally, while using the flaw tolerant safe-life method for establishing an inspection interval is clearly not within the intent of the Amendment 29-28, the fail-safe method for establishing retirement times has been accepted as meeting its intent.

The FAA has initiated a separate proposal to address fatigue tolerance evaluation of composite structure. With the use of advanced composite materials for rotorcraft structural components, we determined that a separate requirement specific to composite structures is required to address the unique characteristics and structural capability of composite structures.

General Discussion of Proposals

The proposed rule for rotorcraft metallic structure would revise and clarify fatigue evaluation requirements to facilitate an improved level of safety and reduce the occurrence of catastrophic fatigue failures of metallic structures. Some of the more significant proposed revisions to the current rule are summarized below.

We have determined that the current rule is too prescriptive by directing the applicant to use specific methodologies to meet the safety objective. This approach has had the effect of lessening the significance of the basic objective of evaluating fatigue tolerance because in practice, the primary focus is on means of compliance. Thus, the entire rule has been rewritten to stress the performance objectives and deemphasize specific methodologies. We propose to delete all references to specific fatigue tolerance evaluation methods (i.e., flaw tolerant safe-life, fail-safe, and safe-life). The words “flaw tolerant and fail-safe” also have different meanings depending on usage. Rather, we propose a descriptive phrase that makes general reference to the entire fatigue evaluation process (including crack initiation, crack growth, and final failure) with or without the influence of damage. Consistent with the current rule, the phrase “fatigue tolerance” is proposed for this purpose.

There are various fatigue tolerance evaluation methods used by industry. All of these methods have merit and could potentially be effective, depending on the specifics of the damage being addressed. The proposed rule requires a specific result, but does not specify the method to achieve the result. However, the proposed rule does require that all methods be validated by testing, and the Administrator must approve the methodology used for compliance.

We have determined that, in general, standards for the safest metallic structures use both retirement times and inspections together to mitigate the risk of catastrophic failure due to fatigue. Consequently, we propose a requirement in § 29.571(h) to establish inspection and retirement times or an approved equivalent means that establish an increased level of safety for metallic structures.

Also, we have determined that a key element that must be included in the evaluation is identification of all threats that need to be considered so damage to metallic structures can be quantified. Accordingly, paragraph (e)(4) of § 29.571 requires a threat assessment for all identified PSEs.

We recognize that an inspection approach may not be possible for some kinds of damage. Thus, we include a provision that would not require inspections, if they cannot be established within the limitations of geometry, inspectability, or good design practice. In this instance, other FAA approved procedures must be implemented to minimize the probability of the damage occurring or contributing to a catastrophic failure.

Paperwork Reduction Act

This proposal contains the following new information collection requirements. As required by 44 U.S.C. 3507(d) of the Paperwork Reduction Act of 1995, the FAA has submitted the information requirements associated with this proposal to the Office of Management and Budget for its review.

Title:Fatigue Tolerance Evaluation (FTE) of Metallic Structures.

Summary:This proposal would revise the FTE safety requirements to address advances in structural fatigue substantiation technology for metallic structures. An increased level of safety would be provided by avoiding or reducing catastrophic fatigue failures of metallic structures. These increased safety requirements would help ensure that should accidental damage occur during manufacturing or within theoperational life of the rotorcraft, the remaining structure could, without failure, withstand fatigue loads that are likely to occur until the damage is detected and repaired or the part is replaced. In addition to improving the safety standards for FTE of all PSE, the proposed amendment would lead to a harmonized international standard.

Use of:To obtain type certification of a rotorcraft, an applicant must show that the rotorcraft complies with specific certification requirements. To show compliance, the applicant must submit substantiating data. FAA engineers or designated engineering representatives from industry would review the required data submittals to determine if the rotorcraft complies with the applicable minimum safety requirements for fatigue critical rotorcraft metallic structures and that the rotorcraft has no unsafe features in the metallic structures.

Respondents (including number of):The likely respondents to this proposed information requirement are applicants for certification of fatigue critical metallic parts for transport category helicopters. A conservative estimate of the number of applicants affected by this rule would average 2 certification applicants every 10 years.

Frequency:The frequency of collection of this information is established as needed by the respondent to meet their certification schedule. The respondent must submit the required information prior to type certification, which can span a number of years.

(1) Evaluate whether the proposed information requirement is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;

(2) evaluate the accuracy of the agency's estimate of the burden;

(3) enhance the quality, utility, and clarity of the information to be collected; and

(4) minimize the burden of the collection of information on those who are to respond, including using appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.

Individuals and organizations may send comments on the information collection requirement by May 11, 2010, and should direct them to the address listed in theADDRESSESsection of this preamble. Comments also should be submitted to the Office of Management and Budget, Office of Information and Regulatory Affairs, Attention: Desk Officer for FAA, New Executive Building, Room 10202, 725 17th Street, NW., Washington, DC 20053.

According to the 1995 amendments to the Paperwork Reduction Act and 5 CFR 1320.8(b)(3)(vi), an agency may not collect or sponsor the collection of information, nor may it impose aninformation collection requirement unless it displays a currently valid OMB control number. The OMB control number for this information collection will be published in theFederal Registerafter the Office of Management and Budget approves it.

International Compatibility

In keeping with U.S. obligations under the Convention on International Civil Aviation, it is FAA's policy to comply with International Civil Aviation Organization (ICAO) Standards to the maximum extent practicable. The FAA has determined that the proposed rule is consistent with the ICAO standard in ICAO Annex 8, Part IV.

European Aviation Safety Agency

The European Aviation Safety Agency (EASA) was established by the European Community to develop standards to ensure safety and environmental protection, oversee uniform application of those standards, and promote them internationally. EASA formally became responsible for certification of aircraft, engines, parts, and appliances on September 28, 2003. The FAA and EASA are coordinating their rulemaking efforts to facilitate harmonized standards for fatigue tolerance evaluation.

Changes to Federal regulations must undergo several economic analyses. First, Executive Order 12866 directs that each Federal agency shall propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs. Second, the Regulatory Flexibility Act of 1980 (Pub. L. 96-354) requires agencies to analyze the economic impact of regulatory changes on small entities. Third, the Trade Agreements Act (Pub. L. 96-39) prohibits agencies from setting standards that create unnecessary obstacles to the foreign commerce of the United States. In developing U.S. standards, this Trade Act requires agencies to consider international standards and, where appropriate, that they be the basis of U.S. standards. Fourth, the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million or more annually (adjusted for inflation with base year of 1995). This portion of the preamble summarizes the FAA's analysis of the economic impacts of this proposed rule. We suggest readers seeking greater detail read the full regulatory evaluation, a copy of which we have placed in the docket for this rulemaking.

In conducting these analyses, FAA has determined that this proposed rule:

(1) Has benefits that justify its costs;

(2) is not an economically “significant regulatory action” as defined in section 3(f) of Executive Order 12866, however the Office of Management and Budget has determined that this NPRM is a “significant regulatory action” because it harmonizes U.S. aviation standards with those of other civil aviation authorities;

(3) is “significant” as defined in DOT's Regulatory Policies and Procedures;

(4) would have a non-significant economic impact on a substantial number of small entities;

(5) would not have a significant effect on international trade; and

(6) would not impose an unfunded mandate on State, local, or tribal governments, or on the private sector by exceeding the monetary threshold identified.

These analyses are summarized below.

Total Benefits and Costs of This Rulemaking

The estimated total cost of this proposed rule is about $9.0 million ($2.9 million in present value at 7% for 27 years). The estimated potential benefits of avoiding at least two of the 9 avoidable historical transport category helicopter accidents are worth about $12.9 million ($5.6 million in present value).

Who Is Potentially Affected by This Rulemaking?

• Manufacturers of U.S.-registered part 29 rotorcraft, and

• Operators of part 29 rotorcraft.

Our Cost Assumptions and Sources of Information

• Discount rate—7%.

• Period of analysis of 27 years equals the 27 years of National Transportation Safety Board accident history. During this period manufacturers will seek new certifications for six part 29 rotorcraft and the total new production helicopters are estimated to be about 1,300.

• Value of fatality avoided—$5.8 million (Source: U.S. Department of Transportation, Treatment of the Value of a Statistical Life in Department Analyses, February 5, 2008).

Benefits of This Rule

The benefits of this proposed rule consist of the value of lives and property that would be saved due to avoiding accidents involving part 29 rotorcraft. Nine Transport Category rotorcraft accidents occurred over the past 27-year historical period. If this rule would have been in effect, it is expected that these nine accidents would have been averted. In the future, without this rule, it is expected that there would be another nine transport category helicopter accidents. The benefit of this proposed rule would be to avert some or all of these accidents. Even if only two of these accidents were to be prevented, the benefit would be approximately $12.9 million ($5.6 million in present value).

Cost of This Rule

We estimate the costs of this proposed rule to be about $9.0 million ($2.9 million in present value) over the 27-year analysis period. Manufacturers of 14 CFR part 29 rotorcraft would incur costs of $532,000 ($293,000 in present value) and operators of 14 CFR part 29 helicopters would incur costs of $8.5 million ($2.6 million in present value).

Regulatory Flexibility Determination

The Regulatory Flexibility Act of 1980 (RFA) establishes “as a principle of regulatory issuance that agencies shall endeavor, consistent with the objective of the rule and of applicable statutes, to fit regulatory and informational requirements to the scale of the business, organizations, and governmental jurisdictions subject to regulation.” To achieve that principle, the RFA requires agencies to solicit and consider flexible regulatory proposals and to explain the rationale for their actions. The RFA covers a wide range of small entities, including small businesses, not-for-profit organizations and small governmental jurisdictions.

Agencies must perform a review to determine whether a proposed or final rule will have a significant economic impact on a substantial number of small entities. If the agency determines that it will, the agency must prepare a regulatory flexibility analysis as described in the Act.

However, if an agency determines that a proposed or final rule is not expected to have a significant economic impact on a substantial number of small entities, section 605(b) of the 1980 RFA provides that the head of the agency may so certify and a regulatory flexibility analysis is not required. The certification must include a statement providing the factual basis for thisdetermination, and the reasoning should be clear.

This proposed rule would affect rotorcraft manufacturers and rotorcraft operators. Therefore, the effect on potential small entities is analyzed separately for helicopter manufacturers and operators.

Part 29 Helicopter ManufacturersSize Standards

Size standards for small entities are published by the Small Business Administration (SBA) on their Web site athttp://www.sba.gov/size.The size standards used herein are from “SBA U.S. Small Business Administration, Table of Small Business Size Standards, Matched to North American Industry Classification System Codes.” The Table is effective August 22, 2008 and uses the NAICS 2007 NAICS codes.

Table R1 shows the three U.S. part 29 helicopter manufacturers, Bell, Erickson Air Crane and Sikorsky. Erickson Air Crane, with 800 employees, is the only part 29 helicopter manufacturer to qualify as a small entity. In addition, Erickson Air Crane currently specializes in the production of the S-64 Sky Crane and is not expected to obtain new helicopter certifications. Therefore, it is not anticipated that this proposed rule would have a significant economic impact on a substantial number of part 29 helicopter manufacturers.

EP12MR10.000Part 29 Helicopter OperatorsSize Standards

While there are only three part 29 helicopter manufacturers in the United States, there are many operators of part 29 helicopters. Each of these operators may provide only one or many services. These services range from off-shore transportation, executive transportation, fire-fighting services, Emergency Medical Services (EMS), and training to maintenance, repair, and modification services.

The SBA lists small entity size standards for air transportation under Sector 44-45, Retail Trade, Subsector 481, Air Transportation. The small entity size standards are 1,500 employees for scheduled and nonscheduled charter passenger and freight transportation. This standard is $28.0 million of annual revenue if the passenger or freight air transportation is off-shore marine air transportation. Finally, the small entity size standard for other—non-scheduled air transportation is $7.0 million of annual revenue.

PHI, Inc. is one of the largest helicopter operators in the world. According to PHI's 2007 Annual Report, in 2007 they employed approximately 2,254 full time employees and had annual revenues of $446.4 million.

We have been unable to obtain the number of operators and the number of employees per operator. Therefore, we take the worst case scenario and assume that all operators would meet the SBA definition. Thus, this proposed rule would affect a substantial number of transport category helicopter operators.

Based on the information received from industry representatives, the cost of this proposed rule to a part 29 helicopter operator would be $1,600 for an inspection that must be performedevery three years on each part 29 helicopter that is certificated under this proposed rule. This would be approximately $550 per helicopter per year. According to Bell Helicopter Product Specifications for the Bell 430 (a part 29 helicopter), January 2005, the direct operating cost of one flight hour is $671.44. Therefore, the proposed rule would add less than one direct hour of operating costs per year to a typical part 29 helicopter. Although this would be an increase in costs, it is not considered that this would be a substantial increase in costs.

Consequently, the FAA certifies that this proposed rule would not have a significant economic impact on a substantial number of part 29 rotorcraft manufacturers or operators.

International Trade Impact Assessment

The Trade Agreements Act of 1979 (Pub. L. 96-39), as amended by the Uruguay Round Agreements Act (Pub. L. 103-465), prohibits Federal agencies from establishing standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States. Pursuant to these Acts, the establishment of standards is not considered an unnecessary obstacle to the foreign commerce of the United States, so long as the standard has a legitimate domestic objective, such the protection of safety, and does not operate in a manner that excludes imports that meet this objective. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards.

The FAA has assessed the potential effect of this proposed rule and determined that it would impose the same costs on domestic and international entities and thus has a neutral trade impact.

Unfunded Mandates Assessment

Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires each Federal agency to prepare a written statement assessing the effects of any Federal mandate in a proposed or final agency rule that may result in an expenditure of $100 million or more (adjusted annually for inflation) in any 1 year by State, local, and tribal governments, in the aggregate, or by the private sector; such a mandate is deemed to be a “significant regulatory action.” The FAA currently uses an inflation-adjusted value of $136.1 million in lieu of $100 million. This proposed rule does not contain such a mandate.

Executive Order 13132, Federalism

The FAA has analyzed this proposed rule under the principles and criteria of Executive Order 13132, Federalism. We have determined that this action would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government, and, therefore, would not have federalism implications.

Regulations Affecting Intrastate Aviation in Alaska

Section 1205 of the FAA Reauthorization Act of 1996 (49 U.S.C. 40113(f)) requires the Administrator, when modifying regulations in Title 14 of the CFR in any manner affecting interstate aviation in Alaska, to consider the extent to which Alaska is not served by transportation modes other than aviation, and to establish any appropriate regulatory distinctions. Because this proposed rule would apply to the certification of future designs of transport category rotorcraft and their subsequent operation, it could, if adopted, affect intrastate aviation in Alaska. The FAA therefore specifically requests comments on whether there is justification for applying the proposed rule differently in intrastate operations in Alaska.

Environmental Analysis

FAA Order 1050.1E identifies FAA actions that are categorically excluded from preparation of an environmental assessment or environmental impact statement under the National Environmental Policy Act in the absence of extraordinary circumstances. The FAA has determined this proposed rulemaking action qualifies for the categorical exclusion identified in paragraph 312f and involves no extraordinary circumstances.

Regulations That Significantly Affect Energy Supply, Distribution, or Use

The FAA has analyzed this NPRM under Executive Order 13211, Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use (May 18, 2001). We have determined that it is not a “significant energy action” under the executive order because while it is a “significant regulatory action,” it is not likely to have a significant adverse effect on the supply, distribution, or use of energy.

Additional Information

Comments Invited:

The FAA invites interested persons to participate in this rulemaking by submitting written comments, data, or views. We also invite comments relating to the economic, environmental, energy, or federalism impacts that might result from adopting the proposals in this document. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, please send only one copy of written comments, or if you are filing comments electronically, please submit your comments only one time.

The FAA will file in the docket all comments we receive, as well as a report summarizing each substantive public contact with FAA personnel concerning this proposed rulemaking. Before acting on this proposal, we will consider all comments we receive on or before the closing date for comments. We will consider comments filed after the comment period has closed if it is possible to do so without incurring additional expense or delay. The FAA may change this proposal in light of the comments we receive.

Availability of Rulemaking Documents

You may obtain an electronic copy of rulemaking documents using the Internet by—

You may also obtain a copy by sending a request to the Federal Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence Avenue, SW., Washington, DC 20591, or by calling (202) 267-9680. Make sure to identify the docket number or notice number of this rulemaking.

You may access all documents the FAA considered in developing this proposed rule, including economic analyses and technical reports, from the internet through the Federal eRulemaking Portal referenced in paragraph 1.

List of Subjects in 14 CFR Part 29

Aircraft, Aviation safety.

The Proposed Amendment

In consideration of the foregoing, the Federal Aviation Administration proposes to amend Chapter I of Title 14, Code of Federal Regulations, as follows:

PART 29—AIRWORTHINESS STANDARDS: TRANSPORT CATEGORY ROTORCRAFT

1. The authority citation for part 29 continues to read as follows:

Authority:

49 U.S.C. 106(g), 40113, 44701-44702, 44704.

2. Revise § 29.571 to read as follows:

§ 29.571Fatigue Tolerance Evaluation of Metallic Structure.

(a) A fatigue tolerance evaluation of each principal structural element (PSE) must be performed, and appropriate inspections and retirement time or approved equivalent means must be established to avoid catastrophic failure during the operational life of the rotorcraft. The fatigue tolerance evaluation must consider the effects of both fatigue and the damage determined in paragraph (e)(4) of this section. Parts to be evaluated include PSEs of the rotors, rotor drive systems between the engines and rotor hubs, controls, fuselage, fixed and movable control surfaces, engine and transmission mountings, landing gear, and their related primary attachments.

(b) For the purposes of this section, the term—

Catastrophic failuremeans an event that could prevent continued safe flight and landing.

Principal Structural Element (PSE)means a structural element that contributes significantly to the carriage of flight or ground loads, and the fatigue failure of that structural element could result in catastrophic failure of the aircraft.

(c) The methodology used to establish compliance with this section must be submitted and approved by the Administrator.

(d) Considering all rotorcraft structure, structural elements, and assemblies, each PSE must be identified.

(e) Each fatigue tolerance evaluation required by this section must include:

(1) In-flight measurements to determine the fatigue loads or stresses for the PSEs identified in paragraph (d) of this section in all critical conditions throughout the range of design limitations required in § 29.309 (including altitude effects), except that maneuvering load factors need not exceed the maximum values expected in operations.

(2) The loading spectra as severe as those expected in operations based on loads or stresses determined under paragraph (e)(1) of this section, including external load operations, if applicable, and other high frequency power-cycle operations.

(3) Takeoff, landing, and taxi loads when evaluating the landing gear and other affected PSEs.

(4) For each PSE identified in paragraph (d) of this section, a threat assessment which includes a determination of the probable locations, types, and sizes of damage, taking into account fatigue, environmental effects, intrinsic and discrete flaws, or accidental damage that may occur during manufacture or operation.

(5) A determination of the fatigue tolerance characteristics for the PSE with the damage identified in paragraph (e)(4) of this section that supports the inspection and retirement times, or other approved equivalent means.

(f) A residual strength determination is required to establish the allowable damage size. In determining inspection intervals based on damage growth, the residual strength evaluation must show that the remaining structure, after damage growth, is able to withstand design limit loads without failure within its operational life.

(g) The effect of damage on stiffness, dynamic behavior, loads, and functional performance must be considered.

(h) Based on the requirements of this section, inspections and retirement times or approved equivalent means must be established to avoid catastrophic failure. The inspections and retirement times or approved equivalent means must be included in the Airworthiness Limitations Section of the Instructions for Continued Airworthiness required by Section 29.1529 and Section A29.4 of Appendix A of this part.

(i) If inspections for any of the damage types identified in paragraph (e)(4) of this section cannot be established within the limitations of geometry, inspectability, or good design practice, then supplemental procedures, in conjunction with the PSE retirement time, must be established to minimize the risk of occurrence of these types of damage that could result in a catastrophic failure during the operational life of the rotorcraft.

On June 22, 2009, NHTSA published a notice of proposed rulemaking (NPRM) proposing a new consumer information program for replacement tires (74 FR 29542). The new consumer information program responded to a requirement in the Energy Independence and Security Act of 2007 (EISA), which directed NHTSA to develop a national tire fuel efficiency rating system and consumer education program for replacement tires. The program would inform consumers about the effect of tires on fuel efficiency, safety and durability.

Prior to the NPRM, NHTSA conducted focus group studies in which it presented several labels using different graphics and scales to relay the ratings proposed in the NPRM. After the NPRM was issued, NHTSA conducted an internet survey to further explore what influences consumers' tire purchasing decisions and how best to convey the information in this new program to consumers.

To further refine the consumer education portion of this new program, NHTSA intends to conduct further consumer research. NHTSA invites interested parties to submit written comments and participate in a public meeting on the research plan using the instructions set forth in this notice. As described in the Procedural Matters section of this notice, each speaker should anticipate speaking for approximately ten minutes, although we may need to adjust the time for each speaker if there is a large turnout. To facilitate discussion, NHTSA has placed documents concerning early research, and the draft research plan for the future in the docket. NHTSA will consider the public comments received in developing a research plan to aid in the development of consumer information requirements and NHTSA's consumer education plan regarding tire fuel efficiency.

DATES:

Public Meeting:The public meeting will be held on Friday, March26, 2010 from 9 a.m. to 5 p.m. at the Department of Transportation, 1200 New Jersey Ave., SE., Washington, DC 20590. NHTSA recommends that all persons attending the meeting arrive at least 45 minutes early in order to facilitate entry into the Department. If you wish to attend or speak at the meeting, you must register in advance no later than Monday, March 22, 2010, by following the instructions in the Procedural Matters section of this notice. NHTSA will consider late registrants to the extent time and space allows, but NHTSA cannot ensure that late registrants will be able to speak at the meeting.

Comments:NHTSA must receive written comments by Friday, April 2, 2010.

Regardless of how you submit your comments, you should mention the docket number of this document.

You may call the Docket at 1-800-647-5527.

Note that all comments received, including any personal information, will be posted without change tohttp://www.regulations.gov.

SUPPLEMENTARY INFORMATION:

On June 22, 2009, NHTSA published a notice of proposed rulemaking (NPRM) proposing a new consumer information program for replacement tires (74 FR 29542). The new consumer information program responded to a requirement in the Energy Independence and Security Act of 2007 (EISA),1which directed NHTSA to develop a national tire fuel efficiency rating system and consumer education program for replacement tires. The program would inform consumers about the effect of tires on fuel efficiency, safety and durability.

1Public Law 110-140, 121 Stat. 1492 (Dec. 18, 2007).

Prior to the NPRM, NHTSA conducted focus group studies in which it presented several labels using different graphics and scales to relay the ratings proposed in the NPRM. After the NPRM was issued, NHTSA conducted an internet survey to further explore what influences consumers' tire purchasing decisions and how best to convey the information in this new program to consumers.

To further refine the consumer education portion of this new program, NHTSA intends to conduct further consumer research. NHTSA invites interested parties to submit written comments and participate in a public meeting on the research plan using the instructions set forth in this notice. To facilitate discussion, NHTSA has placed documents concerning early research, and the draft research plan for the future in the docket. NHTSA will consider the public comments received in developing a research plan to aid in the development of consumer information requirements and NHTSA's consumer education plan regarding tire fuel efficiency.

NHTSA would like to emphasize that the only topic of discussion at this public meeting is NHTSA's research plans for consumer education. Comments on other aspects of the proposed regulation should be presented to NHTSA as described in the NPRM and not via this forum.

Procedural Matters:The meeting will be open to the public with advanced registration for seating on a space-available basis. Individuals wishing to register to assure a seat in the public seating area should provide their name, affiliation, phone number, and e-mail address to Ms. Mary Versailles using the contact information in theFOR FURTHER INFORMATION CONTACTsection at the beginning of this notice no later than Monday March 22, 2010. Should it be necessary to cancel the meeting due to an emergency or some other reason, NHTSA will take all available means to notify registered participants by e-mail or telephone.

The meeting will be held at a site accessible to individuals with disabilities. Individuals who require accommodations such as sign language interpreters should contact Ms. Mary Versailles using the contact information in theFOR FURTHER INFORMATION CONTACTsection above no later than Monday March 22, 2010. Any written materials NHTSA presents at the meeting will be available electronically on the day of the meeting to accommodate the needs of the visually impaired. Because this meeting is solely to develop a research plan, a transcript of the meeting will not be created. Therefore, NHTSA recommends that speakers also submit materials to the docket for the record.

How long will I have to speak at the public meeting?

Once NHTSA learns how many people have registered to speak at the public meeting, NHTSA will allocate an appropriate amount of time to each participant, allowing time for lunch and necessary breaks throughout the day. For planning purposes, each speaker should anticipate speaking for approximately ten minutes, although we may need to adjust the time for each speaker if there is a large turnout. To accommodate as many speakers as possible, NHTSA prefers that speakers not use technological aids (e.g., audio-visuals, computer slideshows). However, if you plan to do so, you must let Ms. Mary Versailles know by Monday, March 22, 2010, using the contact information in theFOR FURTHER INFORMATION CONTACTsection above. You also must make arrangements to provide your presentation or any other aids to NHTSA in advance of the meeting in order to facilitate set-up. During the week of March 22nd, NHTSA will post information on its Web site (http://www.nhtsa.dot.gov) indicating the amount of time allocated for each speaker and each speaker's approximate order on the agenda for the meeting.

How do I prepare and submit written comments?

It is not necessary to attend or to speak at the public meeting to be able to comment on the issues. NHTSA invites the submission of written comments, which the agency will consider in preparing its research plan. Your comments must be written and in English. To ensure that your comments are correctly filed in the Docket, please include the docket number at the beginning of this notice in your comments.

Your primary comments may not exceed 15 pages.2However, you may attach supporting documents to your primary comments. There is no limit to the length of the attachments.

Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in theFederal Registerat 65 FR 19477, April 11, 2000, or you may visithttp://www.regulations.gov.

If you wish Docket Management to notify you upon its receipt of your comments, enclose a self-addressed, stamped postcard in the envelope containing your comments. Upon receiving your comments, Docket Management will return the postcard by mail.

How do I submit confidential business information?

If you wish to submit any information under a claim of confidentiality, send three copies of your complete submission, including the information you claim to be confidential business information, to the Chief Counsel, National Highway Traffic Safety Administration, 1200 New Jersey Avenue, SE., Washington, DC 20590. Include a cover letter supplying the information specified in our confidential business information regulation (49 CFR part 512).

In addition, send two copies from which you have deleted the claimed confidential business information to Docket Management, 1200 New Jersey Avenue, SE., West Building, Room W12-140, Washington, DC 20590, or submit them electronically, in the manner described at the beginning of this notice.

Will the agency consider late comments?

NHTSA will consider all comments that Docket Management receives before the close of business on the comment closing date indicated above underDATES. To the extent the research schedule allows, NHTSA will try to consider comments that Docket Management receives after that date, but we cannot ensure that we will be able to do so.3

Please note that even after the comment closing date we will continue to file relevant information in the docket as it becomes available. Further, some commenters may submit late comments. Accordingly, we recommend that you periodically check the docket for new material.

The U.S. Fish and Wildlife Service (Service) proposes to amend its regulations to add Indian python (Python molurus,including Burmese pythonPython molurus bivittatus), reticulated python (Broghammerus reticulatusorPython reticulatus),Northern African python (Python sebae), Southern African python (Python natalensis), boa constrictor (Boa constrictor), yellow anaconda (Eunectes notaeus), DeSchauensee's anaconda (Eunectes deschauenseei), green anaconda (Eunectes murinus), and Beni anaconda (Eunectes beniensis) to the list of injurious reptiles. This listing would prohibit the importation of any live animal, gamete, viable egg, or hybrid of these nine constrictor snakes into the United States, except as specifically authorized. The best available information indicates that this action is necessary to protect the interests of humans, wildlife, and wildlife resources from the purposeful or accidental introduction and subsequent establishment of these large constrictor snake populations into ecosystems of the United States. If the proposed rule is made final, live snakes, gametes, or hybrids of the nine species or their viable eggs could be imported only by permit for scientific, medical, educational, or zoological purposes, or without a permit by Federal agencies solely for their own use. The proposed rule, if made final, would also prohibit any interstate transportation of live snakes, gametes, viable eggs, or hybrids of the nine species currently held in the United States. If the proposed rule is made final, interstate transportation could be authorized for scientific, medical, educational, or zoological purposes.

We will not accept e-mail or faxes. We will post all comments onhttp://www.regulations.gov. This generally means that we will post any personal information you provide us (see thePublic Commentssection below for more information).

On June 23, 2006, the Service received a petition from the South Florida Water Management District (District) requesting that Burmese pythons be considered for inclusion in the injurious wildlife regulations under the Lacey Act (18 U.S.C. 42). The District is concerned about the number of Burmese pythons found in Florida, particularly in Everglades National Park and on the District's widespread property in South Florida.

The Service published a notice of inquiry in theFederal Register(73 FR 5784; January 31, 2008) soliciting available biological, economic, and other information and data on thePython, Boa, andEunectesgenera for possible addition to the list of injurious wildlife under the Lacey Act and provided a 90-day public comment period. The Service received 1,528 comments during the public comment period that closed April 30, 2008. We reviewed all comments received for substantive issues and information regarding the injurious nature of species in thePython, Boa,andEunectesgenera. Of the 1,528 comments, 115provided economic, ecological, and other data responsive to 10 specific questions in the notice of inquiry. Most individuals submitting comments responded to the notice of inquiry as though it was a proposed rule to list constrictor snakes in thePython, Boa, andEunectesgenera as injurious under the Lacey Act. As a result, most comments expressed either opposition or support for listing the large constrictor snakes species and did not provide substantive information. We considered the information provided in the 115 applicable comments in the preparation of the draft environmental assessment, draft economic analysis, and this proposed rule.

For the injurious wildlife evaluation in this proposed rule, we considered: (1) The substantive information that we received during the notice of inquiry, (2) information from the United States Geological Survey's (USGS) “Giant Constrictors: Biological and Management Profiles and an Establishment Risk Assessment for Nine Large Species of Pythons, Anacondas, and the Boa Constrictor” (Reed and Rodda 2009), and (3) the latest findings regarding the nine large constrictor snakes in Florida and the Commonwealth of Puerto Rico. The USGS's risk assessment (Reed and Rodda 2009) can be viewed at the following web sites:http://www.regulations.govunder Docket No. FWS-R9-FHC-2008-0015 andhttp://www.fort.usgs.gov/Products/Publications/pub_abstract.asp?PubID=22691. Reed and Rodda (2009) provided the primary biological, management, and risk information for this proposed rule. The risk assessment was prepared at the request of the Service and the National Park Service.

Why the Nine Species Were Selected for Consideration as Injurious Species

The four true giants (with maximum lengths well exceeding 6 m [20 ft]) are the Indian python, Northern African python, reticulated python, and green anaconda; they are prevalent in international trade. The boa constrictor is large, prevalent in international trade, and already established in South Florida. The Southern African python, yellow anaconda, DeSchauensee's anaconda, and Beni anaconda exhibit many of the same biological characteristics as the previous five species that pose a risk of establishment and negative effects in the United States. The Service is striving to prevent the introduction and establishment of all nine species into new areas of the United States due to concerns about the injurious effects of all nine species consistent with 18 U.S.C. 42.

Need for the Proposed Rule

The threat posed by the Indian python (including Burmese python) and other large constrictor snakes is evident. Thousands of Indian pythons (including Burmese pythons) are now breeding in the Everglades and threaten many imperiled species and other wildlife. In addition, other species of large constrictors are or may be breeding in South Florida, including boa constrictors and Northern African pythons. Reticulated pythons, yellow anacondas, and green anacondas have also been reported in the wild in Florida. Indian pythons (including Burmese pythons), reticulated pythons, African pythons, boa constrictors, and yellow anacondas have been reported in the wild in Puerto Rico. The Southern African python, yellow anaconda, DeSchauensee's anaconda, and Beni anaconda exhibit many of the same biological characteristics as the previous five species that pose a risk of establishment and negative effects in the United States.

The USGS risk assessment used a method called “climate matching” to estimate those areas of the United States exhibiting climates similar to those experienced by the species in their respective native ranges (Reed and Rodda 2009). Considerable uncertainties exist about the native range limits of many of the giant constrictors, and a myriad of factors other than climate can influence whether a species could establish a population in a particular location. While we acknowledge this uncertainty, these tools also serve as a useful predictor to identify vulnerable ecosystems at risk from injurious wildlife prior to the species actually becoming established (Lodgeet al.2006). Based on climate alone, many species of large constrictors are likely to be limited to the warmest areas of the United States, including parts of Florida, extreme south Texas, Hawaii, and insular territories. For a few species, large areas of the continental United States appear to have suitable climatic conditions. There is a high probability that large constrictors would establish populations in the wild within their respective thermal and precipitation limits due to common life-history traits that make them successful invaders, such as being habitat generalists that are tolerant of urbanization and capable of feeding on a wide range of size-appropriate vertebrates (reptiles, mammals, birds, amphibians, and fish; Reed and Rodda 2009). While a few of the largest species have been known to attack humans in their native ranges, such attacks appear to be rare.

Of the nine large constrictor snakes assessed by Reed and Rodda (2009), five were shown to pose a high risk to the health of the ecosystem, including the Indian python or Burmese python, Northern African python, Southern African python, yellow anaconda, and boa constrictor. The remaining four large constrictors—the reticulated python, green anaconda, Beni anaconda, and DeSchauensee's anaconda—were shown to pose a medium risk. None of the large constrictors that were assessed was classified as low risk. As compared to many other vertebrates, large constrictors pose a relatively high risk for being injurious. They are highly adaptable to new environments and opportunistic in expanding their geographic range. Furthermore, since they are a novel, top predator, they can threaten the stability of native ecosystems by altering the ecosystem's form, function, and structure.

Most of these nine species are cryptically marked, which makes them difficult to detect in the field, complicating efforts to identify the range of populations or deplete populations through visual searching and removal of individuals. There are currently no tools available that would appear adequate for eradication of an established population of giant snakes once they have spread over a large area.

Listing Process

The regulations contained in 50 CFR part 16 implement the Lacey Act (Act; 18 U.S.C. 42) as amended. Under the terms of the Act, the Secretary of the Interior is authorized to prescribe byregulation those wild mammals, wild birds, fish, mollusks, crustaceans, amphibians, reptiles, and the offspring or eggs of any of the foregoing that are injurious to humans, to the interests of agriculture, horticulture, or forestry, or to the wildlife or wildlife resources of the United States. The lists of injurious wildlife species are found at 50 CFR 16.11-16.15.

We are evaluating each of the nine species of constrictor snakes individually and will list only those species that we determine to be injurious. If we determine that any or all of the nine constrictor snakes in this proposed rule are injurious, then, as with all listed injurious animals, their importation into, or transportation between, the States, the District of Columbia, the Commonwealth of Puerto Rico, or any territory or possession of the United States by any means whatsoever is prohibited, except by permit for zoological, educational, medical, or scientific purposes (in accordance with permit regulations at 50 CFR 16.22), or by Federal agencies without a permit solely for their own use, upon filing a written declaration with the District Director of Customs and the U.S. Fish and Wildlife Service Inspector at the port of entry. The rule would not prohibit intrastate transport of the listed constrictor snake species within States. Any regulations pertaining to the transport or use of these species within a particular State would continue to be the responsibility of that State.

The Lacey Act Evaluation Criteria are used as a guide to evaluate whether a species does or does not qualify as injurious under the Act. The analysis developed using the criteria serves as a basis for the Service's regulatory decision regarding injurious wildlife species listings. A species does not have to be established, currently imported, or present in the wild in the United States for the Service to list it as injurious. The objective of such a listing would be to prevent that species' importation and likely establishment in the wild, thereby preventing injurious effects consistent with 18 U.S.C. 42.

If the data indicate that a species is injurious, a proposed rule will be developed. The proposed rule provides the public with a period to comment on the proposed listing and associated documents.

If a determination is made to not finalize the listing, the Service will publish a notice in theFederal Registerexplaining why the species is not added to the list of injurious wildlife. If a determination is made to list a species as injurious after evaluating the comments received during the proposed rule's comment period, a final rule would be published. The final rule contains responses to comments received on the proposed rule, states the final decision, and provides the justification for that decision. If listed, species determined to be injurious will be codified in the Code of Federal Regulations.

Introduction Pathways for Large Constrictor Snakes

The primary pathway for the entry of the nine constrictor snakes into the United States is the commercial trade in pets. The main ports of entry for imports are Miami, Los Angeles, Baltimore, Dallas-Ft. Worth, Detroit, Chicago, and San Francisco. From there, many of the live snakes are transported to animal dealers, who then transport the snakes to pet retailers. Large constrictor snakes are also bred in the United States and sold within the country.

A typical pathway of a large constrictor snake includes a pet store. Often, a person will purchase a hatchling snake (0.5 meters (m) [(22 inches (in)]) at a pet store or reptile show for as little as $35. The hatchling grows rapidly, even when fed conservatively, so a strong snake-proof enclosure is necessary. All snakes are adept at escaping, and pythons are especially powerful when it comes to breaking out of cages. In captivity, they are fed pre-killed mice, rats, rabbits, and chickens. A tub of fresh water is needed for the snake to drink and soak in. As the snake grows too big for a tub in its enclosure, the snake will have to be bathed in a bathtub. Under captive conditions, pythons will grow very fast. An Indian python, for example, will grow to more than 20 feet long, weigh 200 pounds, live more than 25 years, and must be fed rabbits and the like.

Owning a giant snake is a difficult, long-term, somewhat expensive responsibility. For this reason, many snakes are released by their owners into the wild when they can no longer care for them, and other snakes escape from inadequate enclosures. This is a common pathway to invading the ecosystem by large constrictor snakes (Fujisakiet al.2009).

In aggregate, the trade in giant constrictors is significant. From 1999 to 2008, more than 1.8 million live constrictor snakes of 12 species were imported into the United States (U.S. Fish and Wildlife Service 2010). Of all the constrictor snake species imported into the United States, the selection of nine constrictor snakes for evaluation as injurious wildlife was based on concern over the giant size of these particular snakes combined with their quantity in international trade. The four largest species of snakes—Indian python, Northern African python, reticulated python, and green anaconda—were selected, as well as similar and closely related species, and the boa constrictor. These giant constrictor snakes constitute a high risk of injuriousness in relation to those taxa with lower trade volumes, are large in size with maximum lengths exceeding 6 m (20 ft), and have a high likelihood of establishment in various habitats of the United States. The Southern African python, yellow anaconda, DeSchauensee's anaconda, and Beni anaconda exhibit many of the same biological characteristics as the previous five species that pose a risk of establishment and negative effects in the United States.

By far the strongest factor influencing the chances of these large constrictors establishing in the wild is the number of release events and the numbers of individuals released. With a sufficient number of either unintentional or intentional release events, these species will establish in ecosystems with suitable conditions for survival and reproduction. This is likely the case at Everglades National Park, where the core nonnative Burmese python population in Florida is now located. Therefore, allowing unregulated importation and interstate transport of these exotic species will increase the risk of these new species becoming established through increased opportunities for release. A second factor that is strongly and consistently associated with the success of an invasive species' establishment is a history of it successfully establishing elsewhere outside its native range. For example, in addition to the established Indian (including Burmese) python population in Florida, we now know that boa constrictors are established at the Deering Estate at Cutler preserve in South Florida, and the Northern African python is established west of Miami, Florida, in the vicinity known as the Bird Drive Basin Recharge Area. A third factor strongly associated with establishment success is having a good climate or habitat match between where the species naturally occurs and where it is introduced. These three factors have all been consistently demonstrated to increase the chances of establishment by all invasive vertebrate taxa, including the nine large constrictor snakes in this proposed rule (Bomford 2008).

However, as stated above, a species does not have to be established, currently imported, or present in the wild in the United States for the Service to list it as injurious. The objective ofsuch a listing would be to prevent that species' importation and likely establishment in the wild, thereby preventing injurious effects consistent with 18 U.S.C. 42.

Public Comments

We are soliciting substantive public comments and supporting data on the draft environmental assessment, the draft economic analysis, and this proposed rule to add the Indian (including Burmese) python, reticulated python (Broghammerus reticulatusorPython reticulatus),Northern African python, Southern African python, boa constrictor, yellow anaconda, DeSchauensee's anaconda, green anaconda, and Beni anaconda to the list of injurious wildlife under the Lacey Act. The draft environmental assessment, the draft economic analysis, the initial regulatory flexibility analysis, and this proposed rule will be available onhttp://www.regulations.govunder Docket No. FWS-R9-FHC-2008-0015.

You may submit your comments and materials concerning this proposed rule by one of the methods listed in theADDRESSESsection. We will not accept comments sent by e-mail or fax or to an address not listed in theADDRESSESsection.

We will post your entire comment—including your personal identifying information—onhttp://www.regulations.gov. If your written comments provide personal identifying information, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so.

Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection onhttp://www.regulations.govunder Docket No. FWS-R9-FHC-2008-0015, or by appointment, during normal business hours at the South Florida Ecological Services Office (seeFOR FURTHER INFORMATION CONTACTsection).

(1) What regulations does your State have pertaining to the use, transport, or production of any of the nine constrictor snakes? What are relevant Federal, State, or local rules that may duplicate, overlap, or conflict with the proposed rule?

(2) How many of the nine constrictor snakes species are currently in production for wholesale or retail sale, and in how many and which States?

(3) How many businesses sell one or more of the nine constrictor snake species?

(4) How many businesses breed one or more of the nine constrictor snake species?

(5) What are the annual sales for each of the nine constrictor snake species?

(6) How many, if any, of the nine constrictor snake species are permitted within each State?

(7) What would it cost to eradicate individuals or populations of the nine constrictor snakes, or similar species, if found? What methods are effective?

(8) What are the costs of implementing propagation, recovery, and restoration programs for native species that are affected by the nine constrictor snake species, or similar species?

(9) What State threatened or endangered species would be impacted by the introduction of any of the nine constrictor snake species?

(10) What species have been impacted, and how, by any of the nine constrictor snake species?

(11) What provisions in the proposed rule should the Service consider with regard to: (a) The impact of the provision(s) (including any benefits and costs), if any, and (b) what alternatives, if any, the Service should consider, as well as the costs and benefits of those alternatives, paying specific attention to the effect of the rule on small entities?

(12) How could the proposed rule be modified to reduce any costs or burdens for small entities consistent with the Service's requirements?

(13) Why we should or should not include hybrids of the nine constrictor species analyzed in this rule, and if the hybrids possess the same biological characteristics as the parent species.

The speciesPython molurusranges widely over southern and southeast Asia (Reed and Rodda 2009). Reed and Rodda (2009) state that, at times, the species has been divided into subspecies recognizable primarily by color. The most widely used common name for the entire species is Indian python, withP. molurus bivittatusroutinely distinguished as the Burmese python. Because the pet trade is composed almost entirely ofP. m. bivittatus, most popular references simply use Burmese python. However, hereafter, we refer to the species as Indian python (for the entire species), unless specifically noted as Burmese (to refer to the subspecies, or where information sources used that name).

The subspecies,Python molurus molurusis listed as endangered in its native lands under the Endangered Species Act of 1973, as amended (16 U.S.C. 1531,et seq.) under the common name of Indian python.P. molurus molurusis also listed by the Convention on International Trade in Threatened and Endangered Species (CITES) under Appendix I but uses no common name. All other subspecies in the genusPythonare listed in CITES Appendix II. This rule as proposed would list all members ofPython molurusas injurious.

In its native range, the Indian python occurs in virtually every habitat from lowland tropical rainforest (Indonesia and Southeast Asia) to thorn-scrub desert (Pakistan) and grasslands (Sumbawa, India) to montane warm temperate forests (Nepal and China) (Reed and Rodda 2009). This species inhabits an extraordinary range of climates, including both temperate and tropical, as well as both very wet and very dry environments (Reed and Rodda 2009).

Biology

The Indian python's life history is fairly representative of large constrictors because juveniles are relatively small when they hatch, but nevertheless are independent from birth, grow rapidly, and mature in a few years. Mature males search for mates, and the females wait for males to find them during the mating season, then lay eggs to repeat the cycle. Male Indian pythons do not need to copulate with females for fertilization of viable eggs. Instead, the female apparently can fertilize her eggs with her own genetic material, though it is not known how often this occurs in the wild. Several studies of captives reported viable eggs from females kept for many years in isolation (Reed and Rodda).

In a sample of eight clutches discovered in southern Florida (one nest and seven gravid females), the average clutch size was 36 eggs, but pythonshave been known to lay as many as 107 eggs in one clutch. Adult females from recent captures in Everglades National Park have been found to be carrying more than 85 eggs (Harveyet al. 2008).

The Burmese python (Python molurus bivittatus) is one of the largest snakes in the world; it reaches lengths of up to 7 m (23 ft) and weights of over 90 kilograms (kg)(almost 200 pounds (lbs)). Hatchlings range in length from 50 to 80 centimeters (cm)(19 to 31 inches (in)) and can more than double in size within the first year (Harveyet al. 2008). As is true with all snakes, pythons grow throughout their lives. Reed and Rodda (2009) cite Bowler (1977) for two records of Burmese pythons living more than 28 years (up to 34 years, 2 months for one snake that was already an adult when acquired).

Like all of the giant constrictors, Indian pythons are extremely cryptic in coloration. They are silent hunters that lie in wait along pathways used by their prey and then ambush them. They blend so well into their surroundings that observers have released marked snakes for research purposes and lost sight of them 5 feet away (Roybal, pers. comm. 2010).

With only a few reported exceptions, Indian pythons eat terrestrial vertebrates, although they eat a wide variety of terrestrial vertebrates (lizards, frogs, crocodilians, snakes, birds, and mammals). Special attention has been paid to the large maximum size of prey taken from python stomachs, both in their native range and nonnative occurrences in the United States. The most well-known large prey items include alligators, antelopes, dogs, deer, jackals, goats, porcupines, wild boars, pangolins, bobcats, pea fowl, frigate birds, great blue herons, langurs, and flying foxes; a leopard has even been reported as prey (Reed and Rodda 2009). To accommodate the large size of prey, Indian pythons have the ability to grow stomach tissue quickly to digest a large meal (Reed and Rodda 2009).

Although native range boundaries are disputed, reticulated pythons conservatively range across much of mainland Southeast Asia (Reed and Rodda 2009). They are found from sea level up to more than 1,300 m (4,265 ft) and inhabit lowland primary and secondary tropical wet forests, tropical open dry forests, tropical wet montane forests, rocky scrublands, swamps, marshes, plantations and cultivated areas, and suburban and urban areas. Reticulated pythons occur primarily in areas with a wet tropical climate. Although they also occur in areas that are seasonally dry, reticulated pythons do not occur in areas that are continuously dry or very cold at any time (Reed and Rodda 2009).

Biology

The reticulated python is most likely the world's longest snake (Reed and Rodda 2009). Adults can grow to a length of more than 8.7 m (28.5 ft). Like all pythons, the reticulated python is oviparous (lays eggs). The clutch sizes range from 8 to 124, with typical clutches of 20 to 40 eggs. Hatchlings are at least 61 cm (2 ft) in total length (Reed and Rodda 2009). We have no data on life expectancy in the wild, but several captive specimens have lived for nearly 30 years (Reed and Rodda 2009).

The size range of the prey of reticulated pythons is essentially the same as that of the Indian python, as far as is known (Reed and Rodda 2009), and has included chickens, rats, monitor lizards, civet cats, bats, an immature cow, various primates, deer, goats, cats, dogs, ducks, rabbits, tree shrews, porcupines, and many species of birds.

The reticulated python can be an aggressive and dangerous species of giant constrictor to humans. Reed and Rodda (2009) cite numerous sources of people being bitten, attacked, and even killed by reticulated pythons in their native range.

Northern African Python (Python sebae)Native Range

Python sebaeandPython natalensisare closely related, large-bodied pythons of similar appearance found in sub-Saharan Africa (Reed and Rodda 2009). The most common English name for this species complex has been African rock python. AfterP. sebaewas split fromP. natalensis, some authors added “Northern” or “Southern” as a prefix to this common name. Reed and Rodda 2009 adopted Broadley's (1999) recommendations and refer to these snakes as the Northern and Southern African pythons; hereafter, we refer to them as Northern and Southern African pythons, or occasionally as African pythons.

Northern African pythons range from the coasts of Kenya and Tanzania across much of central Africa to Mali and Mauritania, as well as north to Ethiopia and perhaps Eritrea; in arid zones, their range is apparently limited to the vicinity of permanent water (Reed and Rodda 2009). In Nigeria, Northern African pythons are reported from suburban, forest, pond and stream, and swamp habitats, including extensive use of Nigerian mangrove habitats. In the arid northern parts of its range, Northern African pythons appear to be limited to wetlands, including the headwaters of the Nile, isolated wetlands in the Sahel of Mauritania and Senegal, and the Shabelle and Jubba Rivers of Somalia (Reed and Rodda 2009). The Northern African python inhabits regions with some of the highest mean monthly temperatures identified for any of the giant constrictors, with means of greater than 35 °C (95 °F) in arid northern localities (Reed and Rodda 2009).

Biology

Northern African pythons are primarily ambush foragers, lying in wait for prey in burrows, along animal trails, and in water. Northern African pythons are oviparous. Branch (1988) reports that an “average” female of 3 to 4 m (10 to 13 ft) total length would be expected to lay 30 to 40 eggs, while others report an average clutch of 46 eggs, individual clutches from 20 to “about 100,” and clutch size increasing correspondingly in relation to the body length of the female (Pope 1961). In captivity, Northern African pythons have lived for 27 years (Snider and Bowler 1992). As with most of the giant constrictors, adult African pythons primarily eat endothermic (warm-blooded) prey from a wide variety of taxa. Domestic animals consumed by African pythons include goats, dogs, and a domestic turkey consumed by an individual in suburban South Florida.

Southern African Python (Python natalensis)Native Range

The Southern African python is found from Kenya southwest to Angola and south through parts of Namibia and much of eastern South Africa. Distributions of the species overlap somewhat, although the southern species tends to inhabit higher areas in regions where both species occur (Reed and Rodda 2009).

Biology

Little is known about Southern African pythons. They are oviparous. As with most of the giant constrictors, adult African pythons primarily eat endothermic (warm-blooded) prey from a wide variety of taxa. The Southern African pythons consume a variety of prey types that includes those listed for Northern African pythons.

Boa Constrictor (Boa constrictor)Native Range

Boa constrictors range widely over North America (Mexico), Central America, and South America, including dozens of marine and lacustrine islands, and have one of the widest latitudinal distributions of any snake in the world. In their native range, boa constrictors inhabit environments from sea level to 1,000 m (3,280 ft), including wet and dry tropical forest, savanna, very dry thorn scrub, and cultivated fields. They are commonly found in or along rivers and streams because they are capable swimmers (Reed and Rodda 2009; Snowet al. 2007).

Biology

The maximum length of this species is roughly 4 m (13 ft). Boa constrictors are ovoviviparous (bear live young after eggs hatch inside mother). The average clutch size is 35 eggs. Snake longevity records from captive-bred populations can be 38 to 40 years (Reed and Rodda 2009).

The boa constrictor has a broad diet, consuming prey from a wide variety of vertebrate taxa. Young boa constrictors will eat mice, small birds, lizards, and amphibians. The size of the prey item will increase as the snake gets older and larger. The boa constrictor is an ambush predator and will lie in wait for an appropriate prey to come along, at which point it will attack (Reed and Rodda 2009; Snowet al. 2007).

The subspeciesBoa constrictor occidentalisis listed by CITES under Appendix I but uses no common name. This rule as proposed would list all subspecies ofBoa constrictoras injurious.

Yellow Anaconda (Eunectes notaeus)Native Range

The yellow anaconda (E. notaeus) has a larger distribution in subtropical and temperate areas of South America than the DeSchauensee's anaconda and has received more scientific attention. The yellow anaconda appears to be restricted to swampy, seasonally flooded, or riverine habitats throughout its range. The yellow anaconda exhibits a fairly temperate climate range, including localities with cold-season monthly mean temperatures around 10 °C (50 °F) and no localities with monthly means exceeding 30 °C (86 °F) in the warm season (Reed and Rodda 2009).

Biology

The yellow anaconda bears live young (ovoviviparous). The recorded number of yellow anaconda offspring range from 10 to 37, with a maximum of 56. In captivity, yellow anacondas have lived for over 20 years. Yellow anacondas appear to be generalist predators on a range of vertebrates. The anacondas in general exhibit among the broadest diet range of any snake, including ectotherms (lizards, crocodilians, turtles, snakes, fish) and endotherms (birds, mammals), and yellow anacondas have typical diets.

DeSchauensee's Anaconda (Eunectes deschauenseei)Native Range

This species has a much smaller range than does the yellow anaconda and is largely confined to the Brazilian island of Marajo, nearby areas around the mouth of the Amazon River, and several drainages in French Guiana. DeSchauensee's anaconda is known from a small number of specimens and has a limited range in northeast South America. Although not well studied, DeSchauensee's anaconda apparently prefers swampy habitats that may be seasonally flooded. DeSchauensee's anaconda is known from only a few localities in northeast South America, and its known climate range is accordingly very small. While the occupied range exhibits moderate variation in precipitation across the year, annual temperatures tend to range between 25oC (77oF) and 30oC (86oF). Whether the species could tolerate greater climatic variation is unknown.

Biology

DeSchauensee's anaconda appears to be the smallest of the anacondas, although the extremely limited number of available specimens does not allow unequivocal determination of maximal body sizes. Dirksen and Henderson (2002) record a maximum total length of available specimens as 1.92 m (6.3 (ft)) in males and 3.0 m (9.8 (ft)) in females. The DeSchauensee's anaconda is live-bearing. In captivity, DeSchauensee's anacondas have been reported to live for 17 years, 11 months (Snider and Bowler 1992). Clutch sizes of DeSchauensee's anacondas ranged from 3 to 27 (mean 10.6 ± 9.6) in a sample of five museum specimens (Pizzatto and Marques 2007), a range far greater than reported in some general works (for example, 3-7 offspring; Walls, 1998).

DeSchauensee's anaconda is reported to consume mammals, fish, and birds, and its overall diet is assumed to be similar to that of the yellow anaconda (Reed and Rodda 2009).

Green Anaconda (Eunectes murinus)Native Range

The native range of green anaconda includes aquatic habitats in much of South America below 850 m (2,789 ft) elevation plus the insular population on Trinidad, encompassing the Amazon and Orinoco Basins; major Guianan rivers; the San Francisco, Parana, and Paraguay Rivers in Brazil; and extending south as far as the Tropic of Capricorn in northeast Paraguay. The range of green anaconda is largely defined by availability of aquatic habitats. Depending on location within the wide distribution of the species, these appear to include deep, shallow, turbid, and clear waters, and both lacustrine and riverine habitats (Reed and Rodda 2009).

Biology

Reed and Rodda (2009) describe the green anaconda as truly a giant snake, with fairly reliable records of lengths over 7 m (23 ft) and having a very stout body. Very large anacondas are almost certainly the heaviest snakes in the world, ranging up to 200 kg (441 lbs) (Bisplinghof and Bellosa 2007), even though reticulated pythons, for example, may attain greater lengths.

The green anaconda bears live young. The maximum recorded litter size is 82, removed from a Brazilian specimen, but the typical range is 28 to 42 young. Neonates (newly born young) are around 70 to 80 cm (27.5 to 31.5 in) long and receive no parental care. Because of their small size, they often fall prey to other animals. If they survive, they grow rapidly until they reach sexual maturity in their first few years (Reed and Rodda 2009). While reproduction is typically sexual, Reed and Rodda (2009) report that a captive, female green anaconda that was 5 years old in 1976 and that had no access to males gave birth in 2002 to 23 females. This raises the possibility that green anacondas are facultatively parthenogenic, and that, theoretically, a single female green anaconda could establish a population.

The green anaconda is considered a top predator in South American ecosystems. Small anacondas appear to primarily consume birds, and as they mature, they undergo an ontogenetic prey shift to large mammals andreptiles. The regular inclusion of fish in the diet of the anacondas (including other members of the genusEunectes) increases their dietary niche breadth in relation to the other giant constrictors, which rarely consume fish. Green anacondas consume a wide variety of endotherms and ectotherms from higher taxa, including such large prey as deer and crocodilians (alligators are a type of crocodilian). The regular inclusion of fish, turtles, and other aquatic organisms in their diet increases their range of prey even beyond that of reticulated or Indian pythons. Organisms that regularly come in contact with aquatic habitats are likely to be most commonly consumed by green anacondas (Reed and Rodda 2009). Green anacondas would have a ready food supply anywhere that the climate and habitat matched their native range. Since green anacondas are known to prey upon crocodilians, they could potentially thrive on alligators, which are common in the southeastern United States.

Beni Anaconda (Eunectes beniensis)Native Range

The Beni anaconda is a recently described and poorly known anaconda closely related to the green anaconda (Reed and Rodda 2009). The native range of the Beni anaconda is the Itenez/Guapore River in Bolivia along the border with Brazil, as well as the Baures River drainage in Bolivia. The green and Beni anacondas are similar in size and the range of the Beni anaconda is within the range of the green anaconda (Bolivia).

Biology

Eunectes beniensisis a recently described species from northern Bolivia, previously considered to be contained withinE. murinus.Eunectes beniensiswas discovered in the Beni Province, Bolivia—thus the labeled name of Beni anaconda and another alias of Bolivian anaconda. Based on morphological and molecular genetic evidence,E. beniensisis more closely related toE. notaeusandE. deschauenseeithan toE. murinus. The phylogenetic relationships withinEunectesare currently best described as:E. murinus[E. beniensis(E. deschauenseei, E. notaeus)]. To an experienced herpetologist,E. beniensisis easily recognizable by its brown to olive-brownish ground color in combination with five head stripes and less than 100 large, dark, solid dorsal blotches that always lack lighter centers. To a novice,E. beniensisandE. murinusare similar in appearance. The primarily nocturnal anaconda species tends to spend most of its life in or around water.

Summary of the Presence of the Nine Constrictor Snakes in the United States

Of the nine constrictor snake species that are proposed for listing as injurious, six have been reported in the wild in the United States and two have been confirmed as reproducing in the wild in the United States; six have been imported commercially into the United States during the period 1999 to 2008 (Table 1).

Table 1. The species of nine snakes proposed for listing as injurious that have been reported in the United States, are known to be breeding in the United States, and have been imported for trade.SpeciesReported in the wild in U.S.?Reproducing in the wild in U.S.?Imported into U.S. for trade?*Indian (or Burmese) pythonYesYesYesReticulated pythonYesNoYesNorthern African pythonYesPossibleYesSouthern African pythonNoNoUnknown**Boa constrictorYesYesYesYellow anacondaYesNoYesDeSchauensee's anacondaNoNoUnknown**Green anacondaYesNoYesBeni anacondaNoNoUnknown***Data from Draft Economic Analysis (USFWS 2010)** It is possible that this species has been imported into the U.S. incorrectly identified as one of the other species under consideration in this rule.Lacey Act Evaluation Criteria

We use the criteria below to evaluate whether a species does or does not qualify as injurious under the Lacey Act, 18 U.S.C. 42. The analysis that is developed using these criteria serves as a general basis for the Service's regulatory decision regarding injurious wildlife species listings (not just for the nine proposed snake species). Biologists within the Service who are knowledgeable about a species being evaluated will assess both the factors that contribute to and the factors that reduce the likelihood of injuriousness.

(1) Factors that contribute to being considered injurious:

• The likelihood of release or escape;• Potential to survive, become established, and spread;• Impacts on wildlife resources or ecosystems through hybridization and competition for food and habitats, habitat degradation and destruction, predation, and pathogen transfer;• Impact to threatened and endangered species and their habitats;• Impacts to human beings, forestry, horticulture, and agriculture; and• Wildlife or habitat damages that may occur from control measures.

(2) Factors that reduce the likelihood of the species being considered as injurious:

• Ability to prevent escape and establishment;• Potential to eradicate or manage established populations (for example, making organisms sterile);• Ability to rehabilitate disturbed ecosystems;• Ability to prevent or control the spread of pathogens or parasites; and• Any potential ecological benefits tointroduction.

To obtain some of the information for the above criteria, we used Reed and Rodda (2009). Reed and Rodda (2009) developed the Organism Risk Potential scores for each species using a widely utilized risk assessment procedure that was published by the Aquatic Nuisance Species Task Force (ANSTF 1996). This procedure incorporates four factors associated with probability of establishment and three factors associated with consequences of establishment, with the combination of these factors resulting in an overall Organism Risk Potential (ORP) for each species. For the nine constrictor snakes under consideration, the risk of establishment ranged from medium (reticulated python, DeSchauensee's anaconda, green anaconda, and Beni anaconda) to high (Indian python, Northern African python, Southern African python, boa constrictor, and yellow anaconda).

For the nine constrictor snakes under consideration, the consequences of establishment range from low (DeSchauensee's anaconda and Beni anaconda) to medium (reticulated python, yellow anaconda, and green anaconda) to high (Indian python, Northern African python, Southern African python, and boa constrictor). The overall ORP, which is derived from an algorithm of both probability of establishment and consequences of establishment, was found to range from medium (reticulated python, green anaconda, DeSchauensee's anaconda, and Beni anaconda) to high (Indian python, Northern African python, Southern African python, boa constrictor, yellow anaconda).

Certainties were highly variable within each of the seven elements of the risk assessment, varying from very uncertain to very certain. In general, the highest certainties were associated with those species unequivocally established in Florida (Indian python and boa constrictor) because of enhanced ecological information on these species from studies in both their native range and in Florida. The way in which these sub-scores are obtained and combined is set forth in an algorithm created by the ANSTF (Table 2).

Table 2. The algorithm that the ANSTF defined for combining the two primary sub-scores (Reed and Rodda 2009)Probability of

Similar algorithms are used for deriving the primary sub-scores from the secondary sub-scores. However, the scores are fundamentally qualitative, in the sense that there is no unequivocal threshold that is given in advance to determine when a given risk passes from being low to medium, and so forth. Therefore, we viewed the process as one of providing relative ranks for each species. Thus a high ORP score indicates that such a species would likely entail greater consequences or greater probability of establishment than would a species whose ORP was medium or low (that is, high > medium > low). High-risk species are Indian pythons, Northern and Southern African pythons, boa constrictors, and yellow anacondas. High-risk species, if established in this country, put larger portions of the U.S. mainland at risk, constitute a greater ecological threat, or are more common in trade and commerce. Medium-risk species were reticulated python, DeSchauensee's anaconda, green anaconda, and Beni anaconda. These species constitute lesser threats in these areas, but still are potentially serious threats. Because all nine species share characteristics associated with greater risks, none was found to be a low risk.

For the purposes of this proposed rule, a hybrid is any progeny from any cross involving parents of these nine constrictor snake species. Such progeny are likely to possess the same biological characteristics of the parent species that, through our analysis, leads us to find that they are injurious to humans and to wildlife and wildlife resources of the United States.

Factors That Contribute to Injuriousness for Indian PythonCurrent Nonnative Occurrences

The Indian python has been reported as captured in many areas in Florida (see Figure 4 in the draft environmental assessment). In South Florida, more than 1,300 live and dead Burmese pythons, including gravid females, have been removed from in and around Everglades National Park in the last 10 years by authorized agents, park staff, and park partners, indicating that they are already established (National Park Service 2010). In the Commonwealth of Puerto Rico, the Indian python has been collected or reported (eight individuals collected, including a 3-m (10-ft) albino) from the municipality of Adjuntas, the northern region of the island (Arecibo), and the eastern region of the island (Humacao) (Saliva, pers. comm. 2009).

Potential Introduction and Spread

The likelihood of release or escape from captivity of Indian python is high as evidenced by the releases and effects of those releases in Florida and Puerto Rico. When Indian pythons escape captivity or are released into the wild,they have survived and are likely to continue to survive and become established with or without reproduction. For example, in the past 10 years, more than 1,300 Burmese pythons have been removed from Everglades National Park and vicinity (National Park Service 2010) alone and others have been captured from other natural areas on the west side of South Florida, the Florida Keys (Higgins, pers. comm. 2009), and farther up the peninsula, including Sarasota and Indian River County (Lowman, pers. comm. 2009; Dangerfield, pers. comm. 2010). Moreover, released Indian pythons would likely spread to areas of the United States with a suitable climate. These areas were determined in the risk assessment (Reed and Rodda 2009) for all nine constrictor snakes by comparing the type of climate the species inhabited in their native ranges to areas of similar climate in the United States (climate matching). Due to the wide rainfall tolerance and extensive semi-temperate range of Indian python, large areas of the southern United States mainland appear to have a climate suitable for survival of this species. Areas of the United States that are climatically matched at present include along the coasts and across the south from Delaware to Oregon, as well as most of California, Texas, Oklahoma, Arkansas, Louisiana, Mississippi, Alabama, Florida, Georgia, and South and North Carolina. In addition to these areas of the U.S. mainland, the territories of Guam, Northern Mariana Islands, American Samoa, Virgin Islands, and Puerto Rico appear to have suitable climate. Areas of the State of Hawaii with elevations under about 2,500 m (8,202 ft) would also appear to be climatically suitable. Indian pythons are highly likely to spread and become established in the wild due to common traits shared by the giant constrictors, including large size, habitat generalist, tolerance of urbanization, high reproductive potential, long distance disperser, early maturation, rapid growth, longevity, and “sit and wait” style of predation.

Potential Impacts to Native Species (including Threatened and Endangered Species)

As discussed above underBiology, the Indian python grows to lengths greater than 7 m (23 ft) and can weigh up to 90 kg (200 lbs). This is longer than any native terrestrial predator (including bears) in the United States and its territories and heavier than most native predators (including many bears). American black bears (Ursus americanus) vary in size depending on sex, food availability and quality, and other factors. Male black bears can grow to more than six feet long and weigh up to 295 kg (650 lbs); females rarely reach that length and do not weigh more than 79 kg (175 lbs) (Smithsonian Institution 2010). Among the largest of the native predators of the Southeast is the American alligator (Alligator mississippiensis). The average length for an adult female American alligator is 2.6 m (8.2 ft), and the average length for a male is 3.4 m (11.2 ft) (Smithsonian Institution 2010).

In comparison with the Indian python, the largest snake native to North America is the indigo snake (Drymarchon corais), attaining a size of about 2.5 m (8 ft) (Monroe and Monroe 1968). A subspecies of the indigo snake is the eastern indigo snake (D. corais couperi), which grows to a similar maximum length. The eastern indigo snake inhabits Georgia and Florida and is listed as federally threatened by the Service.

Unlike prey species in the Indian python's native range, none of our native species has evolved defenses to avoid predation by such a large snake. Thus, naive native wildlife anywhere in the United States would be very likely to fall prey to Indian pythons (or any of the other eight constrictor snakes). At all life stages, Indian pythons can and will compete for food with native species; in other words, baby pythons will eat small prey, and the size of their prey will increase as they grow. Based on an analysis of their diets in Florida, Indian pythons, once introduced and established, are likely to outcompete native predators (such as the federally listed Florida panther, eastern indigo snake, native boas, hawks), feeding on the same prey and thereby reducing the supply of prey for the native predators. Indian pythons are generalist predators that consume a wide variety of mammal and bird species, as well as reptiles, amphibians, and occasionally fish. This constrictor can easily adapt to prey on novel wildlife (species that they are not familiar with), and they need no special adaptations to capture and consume them. Pythons in Florida have consumed prey as large as white-tailed deer and adult American alligators. Three federally endangered Key Largo woodrats (Neotoma floridana smalli)were consumed by a Burmese python in the Florida Keys in 2007. The extremely small number of remaining Key Largo woodrats suggests that the current status of the species is precarious (USFWS 2008); this means that a new predator that has been confirmed to prey on the endangered woodrats is a serious threat to the continued existence of the species.

The United States, particularly the Southeast, has one of the most diverse faunal communities that are potentially vulnerable to predation by the Indian python. Juveniles of these giant constrictors will climb to remove prey from bird nests and capture perching or sleeping birds. Most of the South has suitable climate and habitat for Indian pythons. The greatest biological impact of an introduced predator, such as the Indian python, is the likely loss of imperiled native species. Based on the food habits and habitat preferences of the Indian python in its native range, the species is likely to invade the habitat, prey on, and further threaten most of the federally threatened or endangered fauna in climate-suitable areas of the United States. Indian pythons are also likely to threaten numerous other potential candidates for Federal protection. Candidate species are plants and animals for which the Service has sufficient information on their biological status and threats to propose them as endangered or threatened under the Endangered Species Act, but for which development of a proposed listing regulation is precluded by other higher priority listing activities. For example, the current candidate list includes several bat species that inhabit the Indian python's climate-matched regions.

The draft environmental assessment includes lists of species that are federally threatened or endangered in climate-suitable States and territories, such as Florida, Hawaii, Guam, Puerto Rico, and the Virgin Islands. These lists include only the species of the sizes and types that would be expected to be directly affected by predation by Indian pythons and the other eight large constrictors. For example, plants and marine species are excluded. In Florida, 14 bird species, 15 mammals, and 2 reptiles that are threatened or endangered could be preyed upon by Indian pythons or be outcompeted by them for prey. Hawaii has 32 bird species and one mammal that are threatened or endangered that would be at risk of predation. Puerto Rico has eight bird species and eight reptile species that are threatened or endangered that would be at risk of predation. The Virgin Islands have one bird species and three reptiles that are threatened or endangered that would be at risk of predation. Guam has six bird species and two mammals that are threatened or endangered that would be at risk of predation.

According to the climate suitability maps (Reed and Rodda 2009),threatened and endangered species from all of Florida, most of Hawaii, and all of Puerto Rico would be at risk from the establishment of Indian pythons. While we did not itemize the federally threatened and endangered species from California, Texas, and other States, there are likely several hundred species in those and other States that would be at risk from Indian pythons. In addition, we assume that Guam, the U.S. Virgin Islands, and other territories would have suitable habitat and climate to support Indian pythons, and these also have federally threatened and endangered species that would be at risk if Indian pythons became established.

The likelihood and magnitude of the effect on threatened and endangered species is high. Indian pythons are thus highly likely to negatively affect threatened and endangered birds and mammals, as well as unlisted native species.

Potential Impacts to Humans

The introduction or establishment of Indian pythons may have negative impacts on humans primarily from the loss of native wildlife biodiversity, as discussed above. These losses would affect the aesthetic, recreational, and economic values currently provided by native wildlife and healthy ecosystems. Educational values would also be diminished through the loss of biodiversity and ecosystem health.

Human fatalities from nonvenomous snakes in the wild are rare, probably only a few per year worldwide (Reed and Rodda 2009). However, although attacks on people by Indian pythons are improbable, they are possible given the large size that some individual snakes can reach.

Factors That Reduce or Remove Injuriousness for Indian PythonControl

No effective tools are currently available to detect and remove established large constrictor populations. Traps with drift fences or barriers are the best option, but their use on a large scale is prohibitively expensive, largely because of the labor cost of baiting, checking, and maintaining the traps daily. Additionally, some areas cannot be effectively trapped due to the expanse of the area and type of terrain, the distribution of the target species, and the effects on any nontarget species. While the Department of the Interior, the U.S. Department of Agriculture's (USDA) Animal and Plant Health Inspection Service (APHIS), and State of Florida entities have conducted limited research on control tools, there are currently no such tools available that would appear adequate for eradication of an established population of large constrictor snakes, such as the Indian python, once they have spread over a large area.

Efforts to eradicate the Indian python in Florida have become increasingly intense as the species is reported in new locations across the State. Natural resource management agencies are expending already-scarce resources to devise methods to capture or otherwise control any large constrictor snake species. These agencies recognize that control of large constrictor snakes (as major predators) on lands that they manage is necessary to prevent the likely adverse impacts to the ecosystems occupied by the invasive snakes.

The draft economic analysis for the nine constrictor snakes (USFWS January 2010), provides the following information about the expenditures for research and eradication in Florida, primarily for Indian pythons, which provides some indication of the efforts to date. The Service spent about $600,000 over a 3-year period (2007 to 2009) on python trap design, deployment, and education in the Florida Keys to prevent the potential extinction of the endangered Key Largo woodrat at Crocodile Lake National Wildlife Refuge. The South Florida Water Management District spent $334,000 between 2005 and 2009 and anticipates spending an additional $156,600 on research, salaries, and vehicles in the next several years. An additional $300,000 will go for the assistance of USDA, Wildlife Services (part of USDA Animal and Plant Health Inspection Service). The USDA Wildlife Research Center (Gainesville FL Field Station) has spent $15,800 from 2008 to 2009 on salaries, travel, and supplies. The USGS, in conjunction with the University of Florida, has spent over $1.5 million on research, radio telemetry, and the development, testing, and implementation of constrictor snake traps. All these expenditures total $2.9 million from 2005 to approximately 2012, or roughly an average of $363,000 per year. However, all of these efforts have failed to provide a method for eradicating large constrictor snakes in Florida.

Kraus (2009) exhaustively reviewed the literature on invasive herpetofauna. While he found a few examples of local populations of amphibians that had been successfully eradicated, he found no such examples for reptiles. He also states that, “Should an invasive [nonnative] species be allowed to spread widely, it is usually impossible—or at best very expensive - to eradicate it.” The Indian python is unlikely to be one of those species that could be eradicated.

Eradication will almost certainly be unachievable for a species that is hard to detect and remove at low densities, which is the case with all of the nine large constrictor snakes. They are well-camouflaged and stealthy, and, therefore, nearly impossible to see in the wild. Most of the protective measures available to prevent the escape of Indian pythons are currently (and expected to remain) cost-prohibitive and labor-intensive. Even with protective measures in place, the risks of accidental escape are not likely to be eliminated. Since effective measures to prevent the establishment in new locations or eradicate, manage, or control the spread of established populations of the Indian python are not currently available, the ability to rehabilitate or recover ecosystems disturbed by the species is low.

Potential Ecological Benefits for Introduction

While the introduction of a faunal biomass could potentially provide a food source for some native carnivores, species native to the United States are unlikely to possess the hunting ability for such large, camouflaged snakes and would not likely turn to large constrictor snakes as a food source. The risks to native wildlife greatly outweigh this unlikely benefit. There are no other potential ecological benefits for the introduction of Indian pythons into the United States.

Conclusion

The Indian python is one of the largest snakes in the world, reaching lengths of up to 7 m (23 ft) and weights of over 90 kilograms (kg)(almost 200 pounds (lbs)). This is longer than any native, terrestrial animal in the United States, including alligators, and three times longer than the longest native snake species. Native fauna have no experience defending against this type of novel, giant predator. Hatchlings are about the size of average adult native snakes and can more than double in size within the first year. In addition, Indian pythons reportedly can fertilize their own eggs and have viable eggs after several years in isolation. Even one female Indian python that escapes captivity could produce dozens of large young at one time (average clutch size is 36, with a known clutch of 107). Furthermore, an individual is likely to live for 20 to 30 years. Even a single python in a small area, such as one of the Florida Keys or insular islands, candevastate the population of a federally threatened or endangered species. There are currently no effective control methods for Indian pythons, nor are any anticipated in the near future.

Therefore, because Indian pythons have already established populations in some areas of the United States; are likely to spread from their current established range to new natural areas in the United States; are likely to become established in disjunct areas of the United States with suitable climate and habitat if released there; are likely to prey on and compete with native species (including threatened and endangered species); and it would be difficult to eradicate or reduce large populations or to recover ecosystems disturbed by the species, the Service finds the Indian python to be injurious to humans and to wildlife and wildlife resources of the United States.

Factors That Contribute to Injuriousness for Reticulated PythonCurrent Nonnative Occurrences

In Florida, two known instances of reticulated python removals have been documented in Vero Beach and Sebastian, Florida. A 5.5 m (18 ft) reticulated python was struck by a person mowing along a canal on 58thAvenue in Vero Beach in 2007, and a reticulated python was removed along Roseland Road in Sebastian, Florida (Dangerfield, pers. comm. 2010). In the Commonwealth of Puerto Rico, reticulated pythons have been collected in the western region of the island (Aguadilla and Mayaguez), and the southern region of the island (Guayama), including a 5.5-m (18-ft) long specimen.

Potential Introduction and Spread

The likelihood of release or escape from captivity of reticulated python is high. Reticulated pythons (Broghammerus reticulatusorPython reticulatus)have escaped or been released into the wild in Florida and the Commonwealth of Puerto Rico. Reticulated pythons are highly likely to survive in natural ecosystems (primarily extreme southern habitats) of the United States. Reticulated pythons have a more tropical distribution than Indian pythons. Accordingly, the area of the mainland United States showing a climate match is smaller, exclusively subtropical, and limited to southern Florida and extreme southern Texas. Low and mid-elevation sites in the United States' tropical territories (Guam, Northern Mariana Islands, American Samoa, Virgin Islands, Puerto Rico) and Hawaii also appear to be climate-matched to the requirements of reticulated pythons. If they escape or are intentionally released, they are likely to survive and become established within their respective thermal and precipitation limits. Reticulated pythons are highly likely to spread and become established in the wild due to common traits shared by the giant constrictors, including large size, habitat generalist, tolerance of urbanization, sit-and-wait style of predation, high reproductive potential, long-distance disperser, rapid growth, longevity, early maturation, and a generalist predator.

Potential Impacts to Native Species (including Threatened and Endangered Species)

Reticulated pythons (Broghammerus reticulatusorPython reticulatus) are highly likely to prey on native species, including threatened and endangered species. Their natural diet includes mammals and birds. An adverse effect of reticulated python on select threatened and endangered species is likely to be moderate to high.

Please seePotential Impacts to Native Species (including Threatened and Endangered Species)underFactors that Contribute to the Injuriousness for Indian Pythonfor a description of the impacts that reticulated pythons would have on native species. These impacts are applicable to reticulated pythons by comparing their prey type with the suitable climate areas and the listed species found in those areas; suitable climate areas and the listed species can be found in the draft environmental assessment.

According to the climate suitability maps (Reed and Rodda 2009), threatened and endangered species from parts of Florida, southern Texas, Hawaii, and Puerto Rico would be at risk from the establishment of reticulated pythons. In addition, we assume that Guam, the U.S. Virgin Islands, and other territories would have suitable habitat and climate to support reticulated pythons, and these also have federally threatened and endangered species that would be at risk if reticulated pythons became established.

Potential Impacts to Humans

Like all pythons, reticulated pythons are nonvenomous. Captive reticulated pythons can carry ticks of agricultural significance (potential threat to domestic livestock) in Florida (Burridgeet al. 2000, 2006; Clark and Doten 1995). The reticulated python can be an aggressive and dangerous species of giant constrictor to humans. Reed and Rodda (2009) cite numerous sources of people being bitten, attacked, and even killed by reticulated pythons in their native range.

The introduction or establishment of reticulated pythons may have negative impacts on humans primarily from the loss of native wildlife biodiversity, as discussed above. These losses would affect the aesthetic, recreational, and economic values currently provided by native wildlife and healthy ecosystems. Educational values would also be diminished through the loss of biodiversity and ecosystem health.

Factors That Reduce or Remove Injuriousness for Reticulated PythonControl

Eradication, management, or control of the spread of reticulated python will be highly unlikely once the species is established. Please see theControlsection for the Indian python for reasons why the reticulated python is difficult to control, all of which apply to this species.

Potential Ecological Benefits for Introduction

While the introduction of a faunal biomass could potentially provide a food source for some native carnivores, species native to the United States are unlikely to possess the hunting ability for such large, camouflaged snakes and would not likely turn to large constrictor snakes as a food source. The risks to native wildlife greatly outweigh this unlikely benefit. There are no other potential ecological benefits from the introduction into the United States or establishment in the United States of reticulated pythons.

Conclusion

The reticulated python can grow to a length of more that 8.7 m (28.5 ft); this is longer than any native, terrestrial animal in the United States. Native fauna have no experience defending against this type of novel, giant predator. Several captive reticulated pythons have lived for nearly 30 years. The reticulated python can be an aggressive and dangerous species to humans. Therefore, even one escaped individual can cause injury to wildlife and possibly humans for several decades. Captive reticulated pythons can carry ticks of agricultural significance (potential threat to domestic livestock) in Florida.

Because reticulated pythons are likely to escape captivity or be released into the wild if imported to areas of the United States that have suitable climate and habitat and do not currently contain the species; are likely to survive, become established, and spread ifescaped or released; are likely to prey on and compete with native species for food and habitat (including threatened and endangered species); are likely to be disease vectors for livestock; and because they would be difficult to prevent, eradicate, or reduce large populations; control spread to new locations; or recover ecosystems disturbed by the species, the Service finds reticulated python to be injurious to humans and to wildlife and wildlife resources of the United States.

Several Northern African pythons have been found in Florida and elsewhere in the United States—most of these are assumed to be escaped or released pets (Reed and Rodda 2009). From 2005 to 2009, adults and hatchlings have been captured, confirming the presence of a population of Northern African pythons along the western border of Miami, adjacent to the Everglades. From May 2009 to January 2010, four specimens were found by herpetologists and the Miami-Dade County Anti-Venom Response Unit, including hatchlings and adults collected from an area of about 2 kilometers (1.6 miles) in diameter known as the Bird Drive Recharge Basin (Miami-Dade County). Dr. Kenneth Krysko, Senior Biological Scientist, Division of Herpetology, Florida Museum of Natural History, University of Florida, is preparing a summary of recent collections and observations of the Northern African Python from the Bird Drive Recharge Basin in Miami-Dade County. One Northern African python has also been collected on State Road 72 approximately 6.43 km (4 mi) east of Myakka River State Park, Sarasota County, Florida.

In the Commonwealth of Puerto Rico, African pythons have been found in the western region of the island (Mayaguez), the San Juan metro area, and the southern region of the island (Guayama).

Potential Introduction and Spread

Northern African pythons have escaped captivity or been released into the wild in Florida and Puerto Rico and are likely to continue to escape and be released into the wild.. Based on Reed and Rodda (2009), extrapolation of climate from the native range and mapped to the United States for Northern African pythons exhibit a climate match that includes a large portion of peninsular Florida, extreme south Texas, and parts of Hawaii and Puerto Rico. Northern African pythons are highly likely to spread and become established in the wild due to common traits shared by the giant constrictors, including large size, habitat generalist, tolerance of urbanization, high reproductive potential, long distance disperser, early maturation, rapid growth, longevity, and a generalist sit-and-wait style of predation.

Potential Impacts to Native Species (including Threatened and Endangered Species)

Northern African pythons are highly likely to prey on native species, including threatened and endangered species. As with most of the giant constrictors, adult African pythons primarily eat endothermic prey from a wide variety of taxa. Adverse effects of Northern African pythons on selected threatened and endangered species are likely to be moderate to high.

Please seePotential Impacts to Native Species (including Threatened and Endangered Species)underFactors that Contribute to the Injuriousness for Indian Pythonfor a description of the impacts that Northern African pythons would have on native species. These impacts are applicable to Northern African pythons by comparing their prey type with the suitable climate areas and the listed species found in those areas; suitable climate areas and the listed species can be found in the draft environmental assessment.

According to the climate suitability maps (Reed and Rodda 2009), threatened and endangered species from parts of Florida, most of Hawaii, and all of Puerto Rico would be at risk from the establishment of Northern African pythons. In addition, we assume that Guam, the U.S. Virgin Islands, and other territories would have suitable habitat and climate to support Northern African pythons, and these also have federally threatened and endangered species that would be at risk if Northern African pythons became established.

Potential Impacts to Humans

The introduction or establishment of Northern African pythons may have negative impacts on humans primarily from the loss of native wildlife biodiversity, as discussed above. These losses would affect the aesthetic, recreational, and economic values currently provided by native wildlife and healthy ecosystems. Educational values would also be diminished through the loss of biodiversity and ecosystem health.

African pythons (both wild and captive-bred) are noted for their bad temperament and readiness to bite if harassed by people. Although African pythons can easily kill an adult person, attacks on humans are uncommon (Reed and Rodda 2009).

Factors That Reduce or Remove Injuriousness for Northern African PythonControl

As with the other giant constrictors, prevention, eradication, management, or control of the spread of Northern African pythons will be highly unlikely. Please see theControlsection for the Indian python for reasons why the Northern African pythons would be difficult to control, all of which apply to this large constrictor.

Potential Ecological Benefits for Introduction

While the introduction of a faunal biomass could potentially provide a food source for some native carnivores, species native to the United States are unlikely to possess the hunting ability for such large, camouflaged snakes and would not likely turn to large constrictor snakes as a food source. The risks to native wildlife greatly outweigh this unlikely benefit. There are no other potential ecological benefits from the introduction into the United States or establishment in the United States of Northern African pythons.

Conclusion

Northern African pythons are long-lived (some have lived in captivity for 27 years). The species feeds primarily on warm-blooded prey (mammals and birds). Northern African pythons have been found to be reproducing in Florida. Therefore, they pose a risk to native wildlife, including threatened and endangered species. African pythons (both wild and captive-bred) are noted for their bad temperament and have reportedly also attacked humans.

Because Northern African pythons are likely to escape or be released into the wild if imported to the United States; are likely to spread from their current established range to new natural areas in the United States; are likely to prey on native species (including threatened and endangered species); and because it would be difficult to eradicate or reduce large populations, or recover ecosystems disturbed by the species, the Service finds the Northern African python to be injurious to humans and to wildlife and wildlife resources of the United States.

Factors That Contribute to Injuriousness of the Southern African PythonCurrent Nonnative Occurrences

Occurrences of the Southern African python in the United States are unknown.

Potential Introduction and Spread

Southern African pythons are likely to escape or be released into the wild if imported into the United States. The Southern African python climate match extends slightly farther to the north in Florida than the Northern African python and also includes portions of Texas from the Big Bend region to the southeasternmost extent of the State. If Southern African pythons escape or are intentionally released, they are likely to survive or become established within their respective thermal and precipitation limits. Southern African pythons are highly likely to spread and become established in the wild due to common traits shared by the giant constrictors, including large size, habitat generalist, tolerance of urbanization, high reproductive potential, long distance disperser, early maturation, rapid growth, longevity, and a generalist sit-and-wait style of predation.

Potential Impacts to Native Species (including Threatened and Endangered Species)

Southern African pythons are highly likely to prey on native species, including threatened and endangered species. As with most of the giant constrictors, adult African pythons primarily eat endothermic prey from a wide variety of taxa. Adverse effects of Southern African pythons on selected threatened and endangered species are likely to be moderate to high.

Please seePotential Impacts to Native Species (including Threatened and Endangered Species)underFactors that Contribute to the Injuriousness for Indian Pythonfor a description of the impacts that Southern African pythons would have on native species. These impacts are applicable to Southern African pythons by comparing their prey type with the suitable climate areas and the listed species found in those areas; suitable climate areas and the listed species can be found in the draft environmental assessment.

According to the climate suitability maps (Reed and Rodda 2009), threatened and endangered species from parts of Florida, Texas, Hawaii, and Puerto Rico would be at risk from the establishment of Southern African pythons. In addition, we assume that Guam, the U.S. Virgin Islands, and other territories would have suitable habitat and climate to support Southern African pythons, and these also have federally threatened and endangered species that would be at risk if Southern African pythons became established.

Potential Impacts to Humans

The introduction or establishment of Southern African pythons may have negative impacts on humans primarily from the loss of native wildlife biodiversity, as discussed above. These losses would affect the aesthetic, recreational, and economic values currently provided by native wildlife and healthy ecosystems. Educational values would also be diminished through the loss of biodiversity and ecosystem health.

African pythons (both wild and captive-bred) are noted for their bad temperament and readiness to bite if harassed by people. Although African pythons can easily kill an adult person, attacks on humans are uncommon (Reed and Rodda 2009).

Factors That Reduce or Remove Injuriousness for Southern African PythonControl

As with the other giant constrictors, prevention, eradication, management, or control of the spread of Southern African pythons will be highly unlikely. Please see theControlsection for the Indian python for reasons why the Southern African pythons would be difficult to control, all of which apply to these large constrictors.

Potential Ecological Benefits for Introduction

While the introduction of a faunal biomass could potentially provide a food source for some native carnivores, species native to the United States are unlikely to possess the hunting ability for such large, camouflaged snakes and would not likely turn to large constrictor snakes as a food source. The risks to native wildlife greatly outweigh this unlikely benefit. There are no other potential ecological benefits from the introduction into the United States or establishment in the United States of Southern African pythons.

Conclusion

Southern African pythons are long-lived. This species feeds primarily on warm-blooded prey (mammals and birds). Therefore, they pose a risk to native wildlife, including threatened and endangered species. Their climate match extends slightly farther to the north in Florida than the Northern African python and also includes portions of Texas from the Big Bend region to the southeasternmost extent of the State. Because Southern African pythons are likely to escape or be released into the wild if imported to the United States; are likely to survive, become established, and spread if escaped or released; are likely to prey on and compete with native species for food and habitat (including threatened and endangered species); and because it would be difficult to prevent, eradicate, or reduce large populations; control spread to new locations; or recover ecosystems disturbed by the species, the Service finds the Southern African python to be injurious to humans and to the wildlife and wildlife resources of the United States.

Factors That Contribute to Injuriousness for Boa ConstrictorCurrent Nonnative Occurrences

At the 180-hectare (444-acre) Deering Estate in Cutler, Florida (a preserve at the edge of Biscayne Bay in Miami-Dade County), boa constrictors are found in multiple habitats, including tropical hardwood hammocks, dirt roads and trails, landscaped areas, and pine rocklands. In addition, 15 boa constrictors have been removed in Indian River County, Florida, by animal damage control officers (Dangerfield, pers. comm. 2010).

In the Commonwealth of Puerto Rico, approximately 100 boa constrictors have been collected or reported in the wild throughout the island, but primarily on the west side of the island (particularly Mayaguez). The Puerto Rico Department of Natural and Environmental Resources believes that this species is frequently breeding on the island (Saliva, pers. comm. 2009)

Potential Introduction and Spread

Boa constrictors (Boa constrictor) have escaped captivity or been released into the wild in Florida and Puerto Rico (Snowet al. 2007; Reed and Rodda 2009), and, therefore, the likelihood of release or escape from captivity is high. Boa constrictors are highly likely to survive in natural ecosystems of the United States. The suitable climate match area with the boa constrictor's native range (excluding the Argentine boaB. c. occidentalis) includes peninsular Florida south of approximately Orlando and extreme south Texas, as well as parts of Hawaii and Puerto Rico (Reed and Rodda 2009). As discussed above, nonnative occurrences in the United States already include South Florida and the Commonwealth of Puerto Rico. If boa constrictors escape or are intentionallyreleased, they are likely to survive or become established within their respective thermal and precipitation limits. Boa constrictors are highly likely to spread and become established in the wild due to common traits shared by the giant constrictors, including large size, habitat generalist, tolerance of urbanization, high reproductive potential, long distance disperser, early maturation, rapid growth, longevity, and a generalist sit-and-wait style of predation.

Potential Impacts to Native Species (including Threatened and Endangered Species)

Boa constrictors are highly likely to prey on native species, including threatened and endangered species. As with most of the giant constrictors, adult boa constrictors primarily eat endothermic prey from a wide variety of taxa. Boa constrictors are ambush predators, and as such will often lie in wait to attack appropriate prey. A sample of 47 boas from an introduced population on Aruba contained 52 prey items, of which 40 percent were birds, 35 percent were lizards, and 25 percent were mammals (Quicket al. 2005). Potential prey at the Deering Estate at Cutler (Miami-Dade County) includes about 160 species of native resident or migratory bird species, a variety of small and medium-sized mammalian species, and native and exotic lizard species (Snowet al. 2007). They have also been known to actively hunt, particularly in regions with a low concentration of suitable prey, and this behavior generally occurs at night. Adverse effects of boa constrictors on threatened and endangered species is likely to be moderate to high.

Please seePotential Impacts to Native Species (including Threatened and Endangered Species)underFactors that Contribute to the Injuriousness for Indian Pythonfor a description of the impacts that boa constrictors would have on native species. These impacts are applicable to boa constrictors by comparing their prey type with the suitable climate areas and the listed species found in those areas; suitable climate areas and the listed species can be found in the draft environmental assessment.

According to the climate suitability maps (Reed and Rodda 2009), threatened and endangered species from parts of Florida, Texas, New Mexico, Arizona, California, and Hawaii, and all of Puerto Rico would be at risk from the establishment of boa constrictors. In addition, we assume that Guam, the U.S. Virgin Islands, and other territories would have suitable habitat and climate to support boa constrictors, and these also have federally threatened and endangered species that would be at risk if boa constrictors became established.

Potential Impacts to Humans

The introduction or establishment of boa constrictors may have negative impacts on humans primarily from the loss of native wildlife biodiversity, as discussed above. These losses would affect the aesthetic, recreational, and economic values currently provided by native wildlife and healthy ecosystems. Educational values would also be diminished through the loss of biodiversity and ecosystem health.

Factors That Reduce or Remove Injuriousness for Boa ConstrictorControl

Prevention, eradication, management, or control of the spread of boa constrictors once established will be highly unlikely. Please see the “Control” section for the Indian python for reasons why the boa constrictor would be difficult to control, all of which apply to this large constrictor.

Potential Ecological Benefits for Introduction

While the introduction of a faunal biomass could potentially provide a food source for some native carnivores, species native to the United States are unlikely to possess the hunting ability for such large, camouflaged snakes and would not likely turn to large constrictor snakes as a food source. The risks to native wildlife greatly outweigh this unlikely benefit. There are no other potential ecological benefits from the introduction into the United States or establishment in the United States of boa constrictors.

Conclusion

Boa constrictors have one of the widest latitudinal distributions of any snake in the world. In their native range, boa constrictors inhabit environments from sea level to 1,000 m (3,280 ft), including wet and dry tropical forest, savanna, very dry thorn scrub, and cultivated fields. Nonnative occurrences in the United States include South Florida and the Commonwealth of Puerto Rico. Boa constrictors are the most commonly imported of the nine proposed constrictor snakes. If boas escape or are intentionally released into new areas, they are likely to survive or become established within their respective thermal limits. Boa constrictors are highly likely to spread and become established in the wild due to common traits shared by the giant constrictors, including large size, habitat generalist, tolerance of urbanization, high reproductive potential, long distance disperser, early maturation, rapid growth, longevity, and a generalist sit-and-wait style of predation.

Because boa constrictors are likely to escape or be released into the wild if imported to the United States; are likely to spread from their current established range to new natural areas in the United States; are likely to prey on native species (including threatened and endangered species); and because it would be difficult to eradicate or reduce large populations, or recover ecosystems disturbed by the species, the Service finds the boa constrictor to be injurious to humans and to wildlife and wildlife resources of the United States.

Factors That Contribute to Injuriousness for Yellow AnacondaCurrent Nonnative Occurrences

An adult yellow anaconda was collected from Big Cypress National Reserve in southern Florida in January 2007, and another individual was photographed basking along a canal about 25 km (15.5 mi) north of that location in January 2008. In 2008, an unnamed observer reportedly captured two anacondas that most closely fit the description of the yellow anaconda farther to the east near the Palm Beach, Florida, county line. In the Commonwealth of Puerto Rico, a few individuals of the yellow anaconda have been collected in the central region of the island (Villalba area).

Potential Introduction and Spread

Yellow anacondas have escaped or been released into the wild in Florida and Puerto Rico and are likely to escape or be released into the wild. Yellow anacondas are highly likely to survive in natural ecosystems of the United States. The yellow anaconda has a native-range distribution that includes highly seasonal and fairly temperate regions in South America. When projected to the United States, the climate space occupied by yellow anaconda maps to a fairly large area, including virtually all of peninsular Florida and a corner of southeast Georgia (to about the latitude of Brunswick), as well as large parts of southern and eastern Texas and a small portion of southern California. Large areas of Hawaii and Puerto Rico appear to exhibit suitable climates, and additional insular United States possessions (Guam, Northern Marianas, American Samoa, and so on) would probably be suitable as well. Within the areas deemed suitable, however, the yellow anaconda would be expected to occupy only habitats with permanentsurface water. Yellow anacondas are highly likely to spread to suitable permanent surface water areas because of their large size, high reproductive potential, early maturation, rapid growth, longevity, and generalist-surprise attack predation.

Potential Impacts to Native Species (including Threatened and Endangered Species)

Yellow anacondas are highly likely to prey on native species, including select threatened and endangered species. The prey list suggests that yellow anacondas employ both “ambush predation” and “wide-foraging” strategies (Reed and Rodda 2009). The snakes forage predominately in open, flooded habitats, in relatively shallow water; wading birds are their most common prey. They have also been known to prey on fish, turtles, small caimans, lizards, birds, eggs, small mammals, and fish carrion (Reed and Rodda). Threatened and endangered species occupying flooded areas, such as the Everglades, would be at risk.

Please seePotential Impacts to Native Species (including Threatened and Endangered Species)underFactors that Contribute to the Injuriousness for Indian Pythonfor a description of the impacts that yellow anacondas would have on native species. These impacts are applicable to yellow anacondas by comparing their prey type with the suitable climate areas and the listed species found in those areas; suitable climate areas and the listed species can be found in the draft environmental assessment.

According to the climate suitability maps (Reed and Rodda 2009), threatened and endangered species from parts of Florida, Texas, Hawaii, and Puerto Rico would be at risk from the establishment of yellow anacondas. In addition, we assume that Guam, the U.S. Virgin Islands, and other territories would have suitable habitat and climate to support yellow anacondas, and these also have federally threatened and endangered species that would be at risk if yellow anacondas became established.

Potential Impacts to Humans

The introduction or establishment of yellow anacondas may have negative impacts on humans primarily from the loss of native wildlife biodiversity, as discussed above. These losses would affect the aesthetic, recreational, and economic values currently provided by native wildlife and healthy ecosystems. Educational values would also be diminished through the loss of biodiversity and ecosystem health.

Factors That Reduce or Remove Injuriousness for Yellow AnacondaControl

Prevention, eradication, management, or control of the spread of yellow anacondas will be highly unlikely. Please see the “Control” section for the Indian python for reasons why yellow anacondas would be difficult to control, all of which apply to this large constrictor.

Potential Ecological Benefits for Introduction

While the introduction of a faunal biomass could potentially provide a food source for some native carnivores, species native to the United States are unlikely to possess the hunting ability for such large, camouflaged snakes and would not likely turn to large constrictor snakes as a food source. The risks to native wildlife greatly outweigh this unlikely benefit. There are no other potential ecological benefits from the introduction into the United States or establishment in the United States of yellow anacondas.

Conclusion

Yellow anacondas are highly likely to survive in natural ecosystems of the United States. The species has a native-range distribution that includes highly seasonal and fairly temperate regions in South America. When projected to the United States, the climate space occupied by yellow anaconda maps to a fairly large area, including virtually all of peninsular Florida and a corner of southeast Georgia (to about the latitude of Brunswick), as well as large parts of southern and eastern Texas and a small portion of southern California. Large areas of Hawaii and Puerto Rico appear to exhibit suitable climates, and additional insular U.S. possessions (such as Guam, Northern Marianas, American Samoa) would probably be suitable as well. Yellow anacondas are highly likely to spread to suitable permanent surface water areas because of their large size, high reproductive potential, early maturation, rapid growth, longevity, and generalist-surprise attack predation.

Because the yellow anacondas are likely to escape captivity or be released into the wild if imported to the United States (note that the yellow anaconda has already been found in the wild in Florida); are likely to survive, become established, and spread if escaped or released; are likely to prey on and compete with native species for food and habitat (including threatened and endangered species); and because it would be difficult to prevent, eradicate, or reduce large populations; control spread to new locations; or recover ecosystems disturbed by the species, the Service finds the yellow anaconda to be injurious to humans and to wildlife and wildlife resources of the United States.

Factors That Contribute to Injuriousness for DeSchauensee's anacondaCurrent Nonnative Occurrences

Occurrences of the DeSchauensee's anaconda in the United States are unknown.

Potential Introduction and Spread

DeSchauensee's anaconda is likely to escape or be released into the wild if imported into the United States. Reed and Rodda's (2009) map identified no areas of the continental United States or Hawaii that appear to have precipitation and temperature profiles similar to those observed in the species' native range, although the southern margin of Puerto Rico and its out-islands (for example, Vieques and Culebra) appear suitable.

Potential Impacts to Native Species (including Threatened and Endangered Species)

The DeSchauensee's anaconda would likely have a similar potential impact as the yellow anaconda. DeSchauensee's anacondas are highly likely to prey on native species, including select threatened and endangered species. Anacondas employ both “ambush predation” and “wide-foraging” strategies (Reed and Rodda 2009). Threatened and endangered wildlife occupying the DeSchauensee's anaconda's preferred habitats would be at risk.

Please seePotential Impacts to Native Species (including Threatened and Endangered Species)underFactors that Contribute to the Injuriousness for Indian Pythonfor a description of the impacts that DeSchauensee's anacondas would have on native species. These impacts are applicable to DeSchauensee's anacondas by comparing their prey type with the suitable climate areas and the listed species found in those areas; suitable climate areas and the listed species can be found in the draft environmental assessment.

According to the climate suitability maps (Reed and Rodda 2009), threatened and endangered species from part of Puerto Rico would be at risk from the establishment of DeSchauensee's anacondas. In addition, we assume that Guam, the U.S. Virgin Islands, and other territories would havesuitable habitat and climate to support DeSchauensee's anacondas, and these also have federally threatened and endangered species that would be at risk if DeSchauensee's anacondas became established.

Potential Impacts to Humans

The introduction or establishment of DeSchauensee's anacondas may have negative impacts on humans primarily from the loss of native wildlife biodiversity, as discussed above. These losses would affect the aesthetic, recreational, and economic values currently provided by native wildlife and healthy ecosystems. Educational values would also be diminished through the loss of biodiversity and ecosystem health.

Factors That Reduce or Remove Injuriousness for DeSchauensee's AnacondaControl

Prevention, eradication, management, or control of the spread of DeSchauensee's anacondas will be highly unlikely. Please see the “Control” section for the Indian python for reasons why yellow anacondas would be difficult to control, all of which apply to this large constrictor.

Potential Ecological Benefits for Introduction

While the introduction of a faunal biomass could potentially provide a food source for some native carnivores, species native to the United States are unlikely to possess the hunting ability for such large, camouflaged snakes and would not likely turn to large constrictor snakes as a food source. The risks to native wildlife greatly outweigh this unlikely benefit. There are no other potential ecological benefits from the introduction into the United States or establishment in the United States of DeSchauensee's anacondas.

Conclusion

DeSchauensee's anacondas are highly likely to spread to suitable permanent surface water areas because of their large size, high reproductive potential, early maturation, rapid growth, longevity, and generalist-surprise attack predation. DeSchauensee's anacondas are highly likely to survive in natural ecosystems of a small but vulnerable region of the United States, such the southern margin of Puerto Rico and its out-islands.

Because DeSchauensee's anacondas are likely to escape captivity or be released into the wild if imported to the United States; are likely to survive, become established, and spread if escaped or released; are likely to prey on and compete with native species for food and habitat (including threatened and endangered species); and because they would be difficult to prevent, eradicate, or reduce large populations; control spread to new locations; or recover ecosystems disturbed by the species, the Service finds the DeSchauensee's anaconda to be injurious to humans and to wildlife and wildlife resources of the United States.

Factors That Contribute to Injuriousness for Green AnacondaCurrent Nonnative Occurrences

An individual green anaconda (approximately 2.5 m (8.2 ft) total length) was found dead on US 41 in the vicinity of Fakahatchee Strand Preserve State Park in Florida in December 2004 (Reed and Rodda 2009). There are reports of two medium-sized adults and a juvenile green anaconda observed but not collected in this general area. A 3.65 m (12 ft) green anaconda was removed from East Lake Fish Camp in northern Oceola County, Florida, on January 13, 2010. This was the first live green anaconda to be caught in the wild in Florida (Florida Fish and Wildlife Conservation Commission 2010).

Potential Introduction and Spread

Green anacondas have escaped captivity or been released into the wild in Florida, and the likelihood of escape or release is medium. Green anacondas are likely to survive in natural ecosystems of the United States. Much of peninsular Florida (roughly south of Gainesville) and extreme south Texas exhibit climatic conditions similar to those experienced by green anacondas in their large South American native range. Lower elevations in Hawaii and all of Puerto Rico have apparently suitable climates, but the rest of the country appears to be too cool or arid. Within the climate-matched area, however, anacondas would not be at risk of establishment in sites lacking surface water. The primarily nocturnal anaconda species tends to spend most of its life in or around water. Green anacondas are highly likely to spread and become established in the wild due to rapid growth to a large size (which encourages pet owners to release them), a high reproductive potential, early maturation, and a sit-and-wait style of predation. There is evidence that green anacondas are facultatively (if no other males are available) parthenogenic.

Potential Impacts to Native Species (including Threatened and Endangered Species)

Green anacondas are highly likely to prey on native species, including threatened and endangered species. They are primarily aquatic and eat a wide variety of prey, including fish, birds, mammals, and other reptiles.

Please seePotential Impacts to Native Species (including Threatened and Endangered Species)underFactors that Contribute to the Injuriousness for Indian Pythonfor a description of the impacts that green anacondas would have on native species. These impacts are applicable to green anacondas by comparing their prey type with the suitable climate areas and the listed species found in those areas; suitable climate areas and the listed species can be found in the draft environmental assessment.

According to the climate suitability maps (Reed and Rodda 2009), threatened and endangered species from parts of Florida, Hawaii, and most of Puerto Rico would be at risk from the establishment of green anacondas. In addition, we assume that Guam, the U.S. Virgin Islands, and other territories would have suitable habitat and climate to support green anacondas, and these also have federally threatened and endangered species that would be at risk if green anacondas became established.

Potential Impacts to Humans

The introduction or establishment of green anacondas may have negative impacts on humans primarily from the loss of native wildlife biodiversity, as discussed above. These losses would affect the aesthetic, recreational, and economic values currently provided by native wildlife and healthy ecosystems. Educational values would also be diminished through the loss of biodiversity and ecosystem health.

Factors That Reduce or Remove Injuriousness for Green AnacondaControl

Prevention, eradication, management, or control of the spread of green anacondas as once established in the United States will be highly unlikely. Please see the “Control” section for the Indian python for reasons why green anacondas would be difficult to control, all of which apply to this large constrictor.

Potential Ecological Benefits for Introduction

While the introduction of a faunal biomass could potentially provide a food source for some native carnivores,species native to the United States are unlikely to possess the hunting ability for such large, camouflaged snakes and would not likely turn to large constrictor snakes as a food source. The risks to native wildlife greatly outweigh this unlikely benefit. There are no other potential ecological benefits from the introduction into the United States or establishment in the United States of green anacondas.

Conclusion

The green anaconda is the among the world's heaviest snakes, ranging up to 200 kg (441 lbs). Large adults are heavier than almost all native, terrestrial predators in the United States, even many bears. Native fauna have no experience defending themselves against this type of novel, giant predator. The range of the green anaconda is largely defined by the availability of aquatic habitats. These include deep and shallow, turbid and clear, and lacustrine and riverine systems. Most of these habitats are found in Florida, including the Everglades, which is suitable climate for the species. Green anacondas are top predators in South America, consuming birds, mammals, fish, and reptiles; prey size includes deer and crocodilians. This diet is even broader than the diet of Indian and reticulated pythons. There is evidence that female green anacondas are facultatively parthenogenic and could therefore reproduce even if a single female is released or escapes into the wild.

Because green anacondas are likely to escape or be released into the wild if imported to the United States (note that the green anaconda has already been found in the wild in Florida); are likely to survive, become established, and spread if escaped or released; are likely to prey on and compete with native species for food and habitat (including threatened and endangered species); and because it would be difficult to prevent, eradicate, or reduce large populations; control spread to new locations; or recover ecosystems disturbed by the species, the Service finds the green anaconda to be injurious to humans and to wildlife and wildlife resources of the United States.

Factors That Contribute to Injuriousness for Beni AnacondaCurrent Nonnative Occurrences

Occurrences of the Beni anaconda in the United States are unknown.

Potential Introduction and Spread

Beni anacondas are likely to escape or be released into the wild if imported into the United States, in part because of their large size (which encourages pet owners to release them). Beni anacondas are highly likely to survive in natural ecosystems of the United States. The Beni anaconda is known from few specimens in a small part of Bolivia, and Reed and Rodda (2009) judged the number of available localities to be insufficient for an attempt to delineate its climate space or extrapolate this space to the United States. Beni anacondas are known from sites with low seasonality (mean monthly temperatures approximately 22.5oC (72oF) to 27.5oC (77oF), and mean monthly precipitation about 5 to 30 cm (2 to 12 in). It is unknown whether the species' native distribution is limited by factors other than climate; if the small native range is attributable to ecological (for example, competition with green anacondas), or historical (for example, climate change) factors. If so, then Reed and Rodda's (2009) qualitative estimate of the climatically suitable areas of the United States would represent underprediction. As a component of the risk assessment, the Beni anaconda's colonization potential is described by Reed and Rodda (2009) as capable of survival in small portions of the mainland or on America's tropical islands (Hawaii, Puerto Rico, American Samoa, Guam, Northern Mariana Islands, Virgin Islands).

Beni anacondas are highly likely to spread and become established in the wild due to rapid growth to a large size, a high reproductive potential, early maturation, and a sit-and-wait style of predation.

Potential Impacts to Native Species (including Threatened and Endangered Species)

Beni anacondas are highly likely to prey on native species, including threatened and endangered species. They are primarily aquatic and eat a wide variety of prey, including fish, birds, mammals, and other reptiles.

Please seePotential Impacts to Native Species (including Threatened and Endangered Species)underFactors that Contribute to the Injuriousness for Indian Pythonfor a description of the impacts that Beni anacondas would have on native species. These impacts are applicable to Beni anacondas by comparing their prey type with the suitable climate areas and the listed species found in those areas; suitable climate areas and the listed species can be found in the draft environmental assessment.

According to the climate suitability maps (Reed and Rodda 2009), threatened and endangered species from parts of Hawaii, and most of Puerto Rico would be at risk from the establishment of Beni anacondas. In addition, we assume that Guam, the U.S. Virgin Islands, and other territories would have suitable habitat and climate to support Beni anacondas, and these also have federally threatened and endangered species that would be at risk if Beni anacondas became established.

Potential Impacts to Humans

The introduction or establishment of Beni anacondas may have negative impacts on humans primarily from the loss of native wildlife biodiversity, as discussed above. These losses would affect the aesthetic, recreational, and economic values currently provided by native wildlife and healthy ecosystems. Educational values would also be diminished through the loss of biodiversity and ecosystem health.

Factors That Reduce or Remove Injuriousness for Beni AnacondaControl

Prevention, eradication, management, or control of the spread of Beni anacondas as once established in the United States will be highly unlikely. Please see the “Control” section for the Indian python for reasons why Beni anacondas would be difficult to control, all of which apply to this large constrictor.

Potential Ecological Benefits for Introduction

While the introduction of a faunal biomass could potentially provide a food source for some native carnivores, species native to the United States are unlikely to possess the hunting ability for such large, camouflaged snakes and would not likely turn to large constrictor snakes as a food source. The risks to native wildlife greatly outweigh this unlikely benefit. There are no other potential ecological benefits from the introduction into the United States or establishment in the United States of Beni anacondas.

Conclusion

Large adults are heavier than almost all native, terrestrial predators in the United States, even many bears. Native fauna have no experience defending themselves against this type of novel, giant predator. The range of the Beni anaconda is largely defined by the availability of aquatic habitats. Beni anacondas are top predators in South America, consuming birds, mammals, fish, and reptiles; prey size includes deer and crocodilians. This diet is even broader than the diet of Indian and reticulated pythons.

Because the Beni anaconda are likely to escape or be released into the wild if imported to the United States; are likely to survive, become established, and spread if escaped or released; are likely to prey on and compete with native species for food and habitat (including threatened and endangered species); and because it would be difficult to prevent, eradicate, or reduce large populations; control spread to new locations; or recover ecosystems disturbed by the species, the Service finds the Beni anaconda to be injurious to humans and to wildlife and wildlife resources of the United States.

Conclusions for the Nine Constrictor SnakesIndian python

The Indian python is one of the largest snakes in the world, reaching lengths of up to 7 m (23 ft) and weights of over 90 kilograms (kg) (almost 200 pounds (lbs)). This is longer than any native, terrestrial animal in the United States, including alligators, and three times longer than the longest native snake species. Native fauna have no experience defending against this type of novel, giant predator. Hatchlings are about the size of average adult native snakes and can more than double in size within the first year. In addition, Indian pythons reportedly can fertilize their own eggs and have viable eggs after several years in isolation. The life expectancy of Indian pythons is 20 to 30 years. Even a single python (especially a female) in a small area, such as one of the Florida Keys or insular islands, can devastate the population of a federally threatened or endangered species. There are currently no effective control methods for Indian pythons, nor are any anticipated in the near future.

Therefore, because Indian pythons have already established populations in some areas of the United States; are likely to spread from their current established range to new natural areas in the United States; are likely to become established in disjunct areas of the United States with suitable climate and habitat if released there; are likely to prey on and compete with native species (including threatened and endangered species); and it would be difficult to eradicate or reduce large populations or to recover ecosystems disturbed by the species, the Service finds the Indian python to be injurious to humans and to wildlife and wildlife resources of the United States.

Reticulated python

The reticulated python can grow to a length of more that 8.7 m (28.5 ft); this is longer than any native, terrestrial animal in the United States. Native fauna have no experience defending against this type of novel, giant predator. Several captive reticulated pythons have lived for nearly 30 years. The reticulated python can be an aggressive and dangerous species to humans. Therefore, even one escaped individual can cause injury to wildlife and possibly humans for several decades. Captive reticulated pythons can carry ticks of agricultural significance (potential threat to domestic livestock) in Florida.

Because reticulated pythons are likely to escape captivity or be released into the wild if imported to areas of the United States that have suitable climate and habitat and do not currently contain the species; are likely to survive, become established, and spread if escaped or released; are likely to prey on and compete with native species for food and habitat (including threatened and endangered species); are likely to be disease vectors for livestock; and because they would be difficult to prevent, eradicate, or reduce large populations; control spread to new locations; or recover ecosystems disturbed by the species, the Service finds reticulated python to be injurious to humans and to wildlife and wildlife resources of the United States.

Northern African Pythons

Northern African pythons are long-lived (some have lived in captivity for 27 years). The species feeds primarily on warm-blooded prey (mammals and birds). Northern African pythons have been found to be reproducing in Florida. Therefore, they pose a risk to native wildlife, including threatened and endangered species. African pythons (both wild and captive-bred) are noted for their bad temperament and have reportedly also attacked humans.

Because Northern African pythons are likely to escape or be released into the wild if imported to the United States; are likely to spread from their current established range to new natural areas in the United States; are likely to prey on native species (including threatened and endangered species); and because it would be difficult to eradicate or reduce large populations, or recover ecosystems disturbed by the species, the Service finds the Northern African python to be injurious to humans and to wildlife and wildlife resources of the United States.

Southern African pythons

Southern African pythons are long-lived. This species feeds primarily on warm-blooded prey (mammals and birds). Therefore, they pose a risk to native wildlife, including threatened and endangered species. Their climate match extends slightly farther to the north in Florida than the Northern African python and also includes portions of Texas from the Big Bend region to the southeasternmost extent of the State. Because Southern African pythons are likely to escape or be released into the wild if imported to the United States; are likely to survive, become established, and spread if escaped or released; are likely to prey on and compete with native species for food and habitat (including threatened and endangered species); and because it would be difficult to prevent, eradicate, or reduce large populations; control spread to new locations; or recover ecosystems disturbed by the species, the Service finds the Southern African python to be injurious to humans and to the wildlife and wildlife resources of the United States.

Boa constrictor

Boa constrictors have one of the widest latitudinal distributions of any snake in the world. In their native range, boa constrictors inhabit environments from sea level to 1,000 m (3,280 ft), including wet and dry tropical forest, savanna, very dry thorn scrub, and cultivated fields. Nonnative occurrences in the United States include South Florida and the Commonwealth of Puerto Rico. Boa constrictors are the most commonly imported of the nine proposed constrictor snakes. If boas escape or are intentionally released into new areas, they are likely to survive or become established within their respective thermal and precipitation limits. Boa constrictors are highly likely to spread and become established in the wild due to common traits shared by the giant constrictors, including large size, habitat generalist, tolerance of urbanization, high reproductive potential, long distance disperser, early maturation, rapid growth, longevity, and a generalist sit-and-wait style of predation.

Because boa constrictors are likely to escape or be released into the wild if imported to the United States; are likely to spread from their current established range to new natural areas in the United States; are likely to prey on native species (including threatened and endangered species); and because it would be difficult to eradicate or reduce large populations, or recover ecosystems disturbed by the species, the Service finds the boa constrictor to be injurious to humans and to wildlife and wildlife resources of the United States.

Yellow anaconda

Yellow anacondas are highly likely to survive in natural ecosystems of the United States. The species has a native-range distribution that includes highly seasonal and fairly temperate regions in South America. When projected to the United States, the climate space occupied by yellow anaconda maps to a fairly large area, including virtually all of peninsular Florida and a corner of southeast Georgia (to about the latitude of Brunswick), as well as large parts of southern and eastern Texas and a small portion of southern California. Large areas of Hawaii and Puerto Rico appear to exhibit suitable climates, and additional insular U.S. possessions (such as Guam, Northern Marianas, American Samoa) would probably be suitable as well. Yellow anacondas are highly likely to spread to suitable permanent surface water areas because of their large size, high reproductive potential, early maturation, rapid growth, longevity, and generalist-surprise attack predation.

Because the yellow anacondas are likely to escape captivity or be released into the wild if imported to the United States (note that the yellow anaconda has already been found in the wild in Florida); are likely to survive, become established, and spread if escaped or released; are likely to prey on and compete with native species for food and habitat (including threatened and endangered species); and because it would be difficult to prevent, eradicate, or reduce large populations; control spread to new locations; or recover ecosystems disturbed by the species, the Service finds the yellow anaconda to be injurious to humans and to wildlife and wildlife resources of the United States.

DeSchauensee's anaconda

DeSchauensee's anacondas are highly likely to spread to suitable permanent surface water areas because of their large size, high reproductive potential, early maturation, rapid growth, longevity, and generalist-surprise attack predation. DeSchauensee's anacondas are highly likely to survive in natural ecosystems of a small but vulnerable region of the United States, such the southern margin of Puerto Rico and its out-islands.

Because the DeSchauensee's anaconda is likely to escape captivity or be released into the wild if imported to the United States; are likely to survive, become established, and spread if escaped or released; are likely to prey on and compete with native species for food and habitat (including threatened and endangered species); and because it would be difficult to prevent, eradicate, or reduce large populations; control spread to new locations; or recover ecosystems disturbed by the species, the Service finds the DeSchauensee's anaconda to be injurious to humans and to wildlife and wildlife resources of the United States.

Green anaconda

The green anaconda is the among the world's heaviest snakes, ranging up to 200 kg (441 lbs). Large adults are heavier than almost all native, terrestrial predators in the United States, even many bears. Native fauna have no experience defending themselves against this type of novel, giant predator. The range of the green anaconda is largely defined by the availability of aquatic habitats. These include deep and shallow, turbid and clear, and lacustrine and riverine systems. Most of these habitats are found in Florida, including the Everglades, which is suitable climate for the species. Green anacondas are top predators in South America, consuming birds, mammals, fish, and reptiles; prey size includes deer and crocodilians. This diet is even broader than the diet of Indian and reticulated pythons. There is evidence that female green anacondas are facultatively parthenogenic and could therefore reproduce even if a single female is released or escapes into the wild.

Because green anacondas are likely to escape or be released into the wild if imported to the United States (note that the green anaconda has already been found in the wild in Florida); are likely to survive, become established, and spread if escaped or released; are likely to prey on and compete with native species for food and habitat (including threatened and endangered species); and because it would be difficult to prevent, eradicate, or reduce large populations; control spread to new locations; or recover ecosystems disturbed by the species, the Service finds the green anaconda to be injurious to humans and to wildlife and wildlife resources of the United States.

Beni anaconda

Large adults are heavier than any almost all native, terrestrial predators in the United States, even many bears. Native fauna have no experience defending themselves against this type of novel, giant predator. The range of the Beni anaconda is largely defined by the availability of aquatic habitats. Beni anacondas are top predators in South America, consuming birds, mammals, fish, and reptiles; prey size includes deer and crocodilians. This diet is even broader than the diet of Indian and reticulated pythons.

Because the Beni anaconda are likely to escape or be released into the wild if imported to the United States; are likely to survive, become established, and spread if escaped or released; are likely to prey on and compete with native species for food and habitat (including threatened and endangered species); and because it would be difficult to prevent, eradicate, or reduce large populations; control spread to new locations; or recover ecosystems disturbed by the species, the Service finds the Beni anaconda to be injurious to humans and to wildlife and wildlife resources of the United States.

Summary of Risk Potentials

Reed and Rodda (2009) found that all of the nine constrictor snakes pose high or medium risks to the interests of humans, wildlife, and wildlife resources of the United States. These risk potentials utilize the criteria for evaluating species as described by ANSTF (1996) (seeLacey Act Evaluation Criteriaabove). That all nine species are high or medium risks supports our finding that all nine constrictor species should be added to the list of injurious reptiles under the Lacey Act.

Required DeterminationsRegulatory Planning and Review

The Office of Management and Budget (OMB) has determined that this rule is significant under Executive Order (E.O.) 12866. OMB bases its determination upon the following four criteria:

(1) Whether the rule will have an annual effect of $100 million or more on the economy or adversely affect an economic sector, productivity, jobs, the environment, or other units of the government.

(2) Whether the rule will create inconsistencies with other Federal agencies' actions.

(3) Whether the rule will materially affect entitlements, grants, user fees, loan programs, or the rights and obligations of their recipients.

(4) Whether the rule raises novel legal or policy issues.

Executive Order 12866 Regulatory Planning and Review (U.S. Office of Management and Budget 1993) and a subsequent document, Economic Analysis of Federal Regulations under Executive Order 12866 (U.S. Office of Management and Budget 1996), identify guidelines or “best practices” for the economic analysis of Federal regulations. With respect to the regulation under consideration, ananalysis that comports with the Circular A-4 would include a full description and estimation of the economic benefits and costs associated with implementation of the regulation. These benefits and costs would be measured by the net change in consumer and producer surplus due to the regulation. Both producer and consumer surplus reflect opportunity cost as they measure what people would be willing to forego (pay) in order to obtain a particular good or service. “Producers' surplus is the difference between the amount a producer is paid for a unit of good and the minimum amount the producer would accept to supply that unit. Consumers' surplus is the difference between what a consumer pays for a unit of a good and the maximum amount the consumer would be willing to pay for that unit (U.S. Office of Management and Budget 1996, section C-1).”

In the context of the regulation under consideration, the economic effects to three groups would be addressed: (1) producers; (2) consumers; and (3) society. With the prohibition of imports and interstate shipping, producers, breeders, and suppliers would be affected in several ways. Depending on the characteristics of a given business (such as what portion of their sales depends on out-of-state sales or imports), sales revenue would be reduced or eliminated, thus decreasing total producer surplus compared to the situation without the regulation. Consumers (pet owners or potential pet owners) would be affected by having a more limited choice of constrictor snakes or, in some cases, no choice at all if out-of-state sales are prohibited. Consequently, total consumer surplus would decrease compared to the situation without the regulation. Certain segments of society may value knowing that the risk to natural areas and other potential impacts from constrictor snake populations is reduced by implementing one of the proposed alternatives. In this case, consumer surplus would increase compared to the situation without the regulation. If comprehensive information were available on these different types of producer and consumer surplus, a comparison of benefits and costs would be relatively straightforward. However, information is not currently available on these values so a quantitative comparison of benefits and costs is not possible.

The limited data currently available are estimates of the number of constrictor snake imports each year, the number of constrictor snakes bred in the United States, and a range of retail prices for each constrictor snake species. We provide the value of the foregone snakes sold as a rough approximation for the social cost of this proposed rulemaking. We provide qualitative discussion on the potential benefits of this rulemaking. In addition, we used an input-output model in an attempt to estimate the secondary or multiplier effects of this rulemaking-job impacts, job income impacts, and tax revenue impacts (discussed below). Given the paucity of the data to estimate the social cost and given the uncertainty associated with the appropriateness of using an input-output model due to the scale effect, we present preliminary results in this regulatory impact analysis. We ask for data that might shed light on estimating the social benefit and cost of this rulemaking. We also ask for information regarding the appropriateness of using IMPLAN model to gauge the secondary effects and if appropriate, the associated uncertainties with the estimates. For the final rulemaking, we plan to investigate the appropriateness of using IMPLAN model, and adjust the presentation of results accordingly.

Regulatory Flexibility Act

Under the Regulatory Flexibility Act (as amended by the Small Business Regulatory Enforcement Fairness Act [SBREFA] of 1996) (5 U.S.C. 601,et seq.), whenever a Federal agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effect of the rule on small entities (that is, small businesses, small organizations, and small government jurisdictions). However, no regulatory flexibility analysis is required if the head of an agency certifies that the rule would not have a significant economic impact on a substantial number of small entities. Thus, for a regulatory flexibility analysis to be required, impacts must exceed a threshold for “significant impact” and a threshold for a “substantial number of small entities.” See 5 U.S.C. 605(b). SBREFA amended the Regulatory Flexibility Act to require Federal agencies to provide a statement of the factual basis for certifying that a rule would not have a significant economic impact on a substantial number of small entities. An Initial Regulatory Flexibility Analysis, which we briefly summarize below, was prepared to accompany this rule. See theFOR FURTHER INFORMATION CONTACTsection orhttp://www.regulations.govunder Docket No. FWS-R9-FHC-2008-0015 for the complete document.

This proposed rule, if made final, would list nine constrictor snake species [Indian python (Python molurus), reticulated python (Broghammerus reticulatusorPython reticulatus),Northern African python (Python sebae), Southern African python (Python natalensis), boa constrictor (Boa constrictor), yellow anaconda (Eunectes notaeus), DeSchauensee's anaconda (Eunectes deschauenseei), green anaconda (Eunectes murinus), and Beni anaconda (Eunectes beniensis)] as injurious species under the Lacey Act. Entities impacted by the listing would include: (1) Companies importing live snakes, gametes, viable eggs, hybrids; and (2) companies (breeders and wholesalers) with interstate sales of live snakes, gametes, viable eggs, hybrids. Importation of the nine constrictor snakes would be eliminated, except as specifically authorized. Impacts to entities breeding or selling these snakes domestically would depend on the amount of interstate sales within the constrictor snake market. Impacts also are dependent upon whether or not consumers would substitute the purchase of an animal that is not listed, which would thereby reduce economic impacts.

For businesses importing large constrictor snakes, the maximum impact of this rulemaking would result in 197 to 270 small businesses (66 percent) having a reduction in their retail sales of between 24 percent and 49 percent. However, this rulemaking would have an unknown impact on these small businesses because we do not know: (1) Whether these businesses sell other snakes and reptiles as well, (2) if the listed snakes are more profitable than nonlisted snakes or other aspects of the business, or (3) if consumers would substitute the purchase of other snakes that are not listed.

For businesses breeding or selling large constrictor snakes domestically, approximately 62 to 85 percent of these entities would qualify as small businesses. Under the proposed rule, the interstate transport of the nine constrictor snakes would be discontinued, except as specifically permitted. Thus, any revenue that would be potentially earned from this portion of business would be eliminated. The amount of sales impacted is completely dependent on the percentage of interstate transport. That is, the impact depends on where businesses are located and where their customers are located. Since information is not currently available on interstate sales of large constrictor snakes, we assume that a sales reductionof between 20 and 80 percent would most likely include the actual impact on out-of-state sales.

Therefore, this proposed rule may have a significant economic effect on a substantial number of small entities as defined under the Regulatory Flexibility Act (5 U.S.C. 601et seq.).

Small Business Regulatory Enforcement Fairness Act

The proposed rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule:

a. Would not have an annual effect on the economy of $100 million or more. According to the draft economic analysis (USFWS, 2010), the annual retail value losses for the nine constrictor snake species are estimated to range from $3.6 million to $10.7 million. The 10-year retail value losses to the large constrictor snake market are estimated to range from $37.5 million to $93.6 million discounted at 3 percent or range from $32.1 million to $80.1 million discounted at 7 percent. In addition, businesses would also face the risk of fines if caught transporting these constrictor snakes, gametes, viable eggs, or hybrids across State lines. The penalty for a Lacey Act violation is not more than 6 months in prison and not more than a $5,000 fine for an individual and not more than a $10,000 fine for an organization.

b. Would not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions. Businesses breeding or selling the listed snakes would be able to substitute other species and maintain business by seeking unusual morphologic forms in other snakes. Some businesses, however, may close. We do not have data for the potential substitutions and therefore, we do not know the number of businesses that may close.

c. Would not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of United States-based enterprises to compete with foreign-based enterprises.

Unfunded Mandates Reform Act (2 U.S.C. 1501et seq.)

In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501), the Service makes the following findings:

(a) This rule would not produce a Federal mandate. In general, a Federal mandate is a provision in legislation, statute, or regulation that would impose an enforceable duty upon State, local, tribal governments, or the private sector and includes both “Federal intergovernmental mandates” and “Federal private sector mandates.” These terms are defined in 2 U.S.C. 658(5)-(7). “Federal intergovernmental mandate” includes a regulation that “would impose an enforceable duty upon State, local, or tribal governments” with two exceptions. It excludes “a condition of Federal assistance.” It also excludes “a duty arising from participation in a voluntary Federal program,” unless the regulation “relates to a then-existing Federal program under which $500,000,000 or more is provided annually to State, local, and tribal governments under entitlement authority,” if the provision would “increase the stringency of conditions of assistance” or “place caps upon, or otherwise decrease, the Federal Government's responsibility to provide funding,” and the State, local, or tribal governments “lack authority” to adjust accordingly. At the time of enactment, these entitlement programs were: Medicaid; AFDC work programs; Child Nutrition; Food Stamps; Social Services Block Grants; Vocational Rehabilitation State Grants; Foster Care, Adoption Assistance, and Independent Living; Family Support Welfare Services; and Child Support Enforcement. “Federal private sector mandate” includes a regulation that “would impose an enforceable duty upon the private sector, except (i) a condition of Federal assistance or (ii) a duty arising from participation in a voluntary Federal program.”

(b) The rule would not have a significant or unique effect on State, local, or tribal governments or the private sector. A statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531et seq.) is not required.

Takings

In accordance with E.O. 12630 (Government Actions and Interference with Constitutionally Protected Private Property Rights), the rule does not have significant takings implications. A takings implication assessment is not required. This rule would not impose significant requirements or limitations on private property use.

Federalism

In accordance with E.O. 13132 (Federalism), this proposed rule does not have significant Federalism effects. A Federalism assessment is not required. This rule would not have substantial direct effects on States, in the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with Executive Order 13132, we determine that this rule does not have sufficient Federalism implications to warrant the preparation of a Federalism Assessment.

Civil Justice Reform

In accordance with Executive Order 12988, the Office of the Solicitor has determined that the rule does not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Executive Order. The rule has been reviewed to eliminate drafting errors and ambiguity, was written to minimize litigation, provides a clear legal standard for affected conduct rather than a general standard, and promotes simplification and burden reduction.

Paperwork Reduction Act of 1995 (44 U.S.C. 3501et seq.)

This rule does not contain any new collections of information that require approval by OMB under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501et seq.). This rule will not impose new recordkeeping or reporting requirements on State or local governments, individuals, businesses, or organizations. OMB has approved the information collection requirements associated with the required permits and assigned OMB Control No. 1018-0093. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.

National Environmental Policy Act

We have reviewed this rule in accordance with the criteria of the National Environmental Policy Act (42 U.S.C. 4321et seq.) and the Departmental Manual in 516 DM. This action is being taken to protect the natural resources of the United States. A draft environmental assessment has been prepared and is available for review by written request (seeFOR FURTHER INFORMATION CONTACTsection) or athttp://www.regulations.govunder Docket No. FWS-R9-FHC-2008-0015. By adding Indian python, reticulated python, Northern African python, Southern African python, boa constrictor, yellow anaconda, DeSchauensee's anaconda, green anaconda, and Beni anaconda to the list of injurious wildlife, we intend to prevent their new introduction, further introduction, and establishment into natural areas of the United States to protect native wildlife species, thesurvival and welfare of wildlife and wildlife resources, and the health and welfare of humans. If we do not list the nine constrictor snakes as injurious, the species may expand in captivity to States where they are not already found; this would increase the risk of their escape or intentional release and establishment in new areas, which would likely threaten native fish and wildlife, and humans. Indian pythons, boa constrictors, and Northern African pythons are established in southern Florida and the Commonwealth of Puerto Rico. Releases of the nine constrictor snakes into natural areas of the United States are likely to occur again, and the species are likely to become established in additional U.S. natural areas such as national wildlife refuges and parks, threatening native fish and wildlife populations and ecosystem form, function, and structure.

Clarity of Rule

We are required by Executive Orders 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:

(a) Be logically organized;

(b) Use the active voice to address readers directly;

(c) Use clear language rather than jargon;

(d) Be divided into short sections and sentences; and

(e) Use lists and tables wherever possible.

If you feel that we have not met these requirements, send us comments by one of the methods listed in theADDRESSESsection. To better help us revise the rule, your comments should be as specific as possible. For example, you should tell us the numbers of the sections or paragraphs that are unclearly written, which sections or sentences are too long, and the sections where you feel lists or tables would be useful.

Government-to-Government Relationship with Tribes

In accordance with the President's memorandum of April 29, 1994, Government-to-Government Relations with Native American Tribal Governments of the Interior's manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with recognized Federal tribes on a government-to-government basis. In accordance with Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act), we readily acknowledge our responsibilities to work directly with tribes in developing programs for healthy ecosystems, to acknowledge that tribal lands are not subject to the same controls as Federal public lands, to remain sensitive to Indian culture, and to make information available to tribes. We have evaluated potential effects on federally recognized Indian tribes and have determined that there are no potential effects. This rule involves the importation and interstate movement of live boa constrictors, four python species, and four anaconda species, gametes, viable eggs, or hybrids. We are unaware of trade in these species by tribes.

Effects on Energy

On May 18, 2001, the President issued Executive Order 13211 on regulations that significantly affect energy supply, distribution, and use. Executive Order 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. This rule is not expected to affect energy supplies, distribution, and use. Therefore, this action is a not a significant energy action and no Statement of Energy Effects is required.

References Cited

A complete list of all references used in this rulemaking is available upon request from the South Florida Ecological Services Office, Vero Beach, FL (see theFOR FURTHER INFORMATION CONTACTsection).

Authors

The primary authors of this proposed rule are the staff members of the South Florida Ecological Services Office (seeFOR FURTHER INFORMATION CONTACTsection).

For the reasons discussed in the preamble, the U.S. Fish and Wildlife Service proposes to amend part 16, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as follows:

PART 16—[AMENDED]

1. The authority citation for part 16 continues to read as follows:

Authority:

18 U.S.C. 42.

2. Amend § 16.15 by revising paragraph (a) to read as follows:

§ 16.15Importation of live reptiles or their eggs.

(a) The importation, transportation, or acquisition of any live specimen, gamete, viable egg, or hybrid of the species listed in this paragraph is prohibited except as provided under the terms and conditions set forth in § 16.22:

National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

ACTION:

Proposed rule; request for comments.

SUMMARY:

This proposed rule is issued consistent with a regulatory framework that was established in 1996 to implement the Washington coastal treaty Indian tribes' rights to harvest Pacific Coast groundfish. Washington coastal treaty Indian tribes mean the Hoh, Makah, and Quileute Indian Tribes and the Quinault Indian Nation. TheMakah and Quileute Tribes have expressed their intent to participate in the 2010 Pacific whiting fishery. This proposed rule establishes an interim formula for setting the tribal allocation of Pacific whiting for the 2010 season only, based on discussions with the Makah and Quileute tribes regarding their fishing plans.

DATES:

Comments on this proposed rule must be received no later than 5 p.m., local time on April 2, 2010.

ADDRESSES:

You may submit comments, identified by RIN 0648-AY59 by any one of the following methods:

Instructions: No comments will be posted for public viewing until after the comment period has closed. All comments received are a part of the public record and will generally be posted tohttp://www.regulations.govwithout change. All Personal Identifying Information (for example, name, address, etc.) voluntarily submitted by the commenter may be publicly accessible. Do not submit Confidential Business Information or otherwise sensitive or protected information.

NMFS will accept anonymous comments (enter N/A in the required fields if you with to remain anonymous). You may submit attachments to electronic comments in Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only.

This proposed rule is accessible via the Internet at the Office of the Federal Register's Website athttp://www.gpoaccess.gov/fr/index.html. Background information and documents are available at the Pacific Fishery Management Council's website athttp://www.pcouncil.org/.

Background

The regulations at 50 CFR 660.324(d) establish the process by which the tribes with treaty fishing rights in the area covered by the Pacific Coast Groundfish Fishery Management Plan (FMP) can request new allocations or regulations specific to the tribes during the biennial harvest specifications and management measures process. These requests must be made in writing. The regulations also state “the Secretary will develop tribal allocations and regulations under this paragraph in consultation with the affected tribe(s) and, insofar as possible, with tribal consensus.” These procedures employed by NOAA in implementing tribal treaty rights under the FMP, in place since May 31, 1996, were designed to provide a framework process by which NOAA Fisheries can accommodate tribal treaty rights by setting aside appropriate amounts of fish in conjunction with the Pacific Fishery Management Council's (Council) process for determining harvest specifications and management measures. The Council's groundfish fisheries require a high degree of coordination among the tribal, state, and federal co-managers in order to rebuild overfished species and prevent overfishing, while allowing fishermen opportunities to sustainably harvest over 90 species of groundfish managed under the FMP.

Since 1996, NMFS has been allocating a portion of the U.S. Optimum Yield (OY) of Pacific whiting to the tribal fishery following the process established in 50 CFR 660.324(d). The tribal allocation is subtracted from the total U.S. whiting OY before it is allocated to the non-tribal sectors.

To date, only the Makah Tribe has prosecuted a tribal fishery for Pacific whiting. The Makah Tribe has annually harvested a whiting allocation since 1996 using midwater trawl gear. Since 1999, the tribal allocation has been based on a statement of need for their tribal fishery. In recent years, the specific tribal amount has been determined using a sliding scale relative to the U.S. whiting OY of between 14 and 17.5 percent, depending on the specific OY determined by the Council. In general, years with a relatively low OY result in a tribal allocation closer to 17.5 percent, and years with a relatively high OY result in a tribal allocation closer to 13 percent.

Allocations of Pacific whiting to treaty Indian tribes on the coast of Washington have varied between 25,000 mt and 35,000 mt for the years 2000-2005. In 2000, with a U.S. OY of 232,000 mt, 32,500 mt of whiting was set aside for treaty Indian tribes on the coast of Washington State. In 2001 and 2002, the U.S. OY declined to 190,400 mt and 129,600 mt, respectively, and the tribal allocations for those years were also lower: 27,500 mt and 22,680 mt, respectively. In 2003, with a U.S. OY of 148,200 mt, the tribal allocation was 25,000 mt. In 2004, the U.S. OY was 250,000 mt with a tribal allocation of 32,500 mt. In 2005, the U.S. OY of 269,069 had a corresponding tribal allocation of 35,000 mt. In 2006, the U.S. OY of 269,069 mt resulted in a tribal allocation of 32,500 mt. In 2007, the U.S. OY of 242,591 mt had a corresponding tribal allocation of 35,000 mt. In 2008, the U.S. OY of 269,545 mt resulted in a tribal allocation of 35,000 mt.

For the 2009-2010 harvest specification biennial cycle, three of the four coastal tribes indicated their intent to participate in the whiting fishery at some point during this two-year period. The Quinault Nation indicated their intent to start fishing in 2010, and both the Quileute and Makah Tribes indicated they intended to fish in both 2009 and 2010. All three tribes notified NOAA Fisheries of their intent to participate in the whiting fishery during the November 2007 Council meeting, and subsequently followed up with written requests for allocations pursuant to 50 CFR 660.324(d) prior to the March 8-14, 2008 Council meeting.

After the initial tribal requests were received, several meetings and discussions took place between the tribal, state, and federal co-managers. These meetings resulted in an understanding by NOAA and the State of Washington that a tribal allocation of 50,000 mt in 2009 would satisfy the needs expressed by the Quileute and the Makah. This allocation was based on the separate requests of the Quileute for up to 8,000 mt in 2009, and the Makah for up to 42,000 mt in 2009, for a total of 50,000 mt.

Based on the requests received from the Tribes during the schedule specified in 50 CFR 660.324, the Council recommended a tribal set-aside of 50,000 mt for 2009 only, with the Makah Tribe to manage 42,000 mt, including the bycatch amounts associated with this portion of the set-aside, and the Quileute Tribe to manage 8,000 mt, including the bycatch amounts associated with this portion of the set-aside. The Council also requested that NOAA Fisheries convene the co-managers, including the states of Oregon and Washington, and the Washington coastal treaty tribes, in government to government discussions to develop a proposal for 2010 and beyond for tribal set-asides of Pacific Whiting.

In accordance with this recommendation, NOAA Fisheries established an overall Tribal set-aside of 50,000 mt for 2009, on March 6, 2009(74 FR 9874). Further, NOAA Fisheries established interim individual Tribal set-asides for the Quileute and Makah Tribes in the amounts of 8,000 mt and 42,000 mt, respectively, which represented the amounts requested or agreed upon at the time the shares of the 2009 fishery were being established by the Council in accordance with the procedures set forth in 50 CFR 660.324. These interim individual Tribal set-asides for 2009 only were not in any manner to be considered a determination of treaty rights to the harvest of Pacific whiting for use in future fishing seasons, nor did they set precedent for individual Tribal allocations of the Pacific whiting resource. Rather, the amounts set aside for each tribe for 2009 were based on the timely requests from the tribes at the June Council meeting. Only the Makah engaged in a tribal whiting fishery in 2009.

Following the Council's direction, in 2008 NMFS and the co-managers also began the process to determine the long-term tribal allocation for whiting. At the September 2008 Council meeting, NOAA, the states and the Quinault, Quileute, and Makah tribes met and agreed on a process in which NOAA would pull together the current information regarding whiting, circulate it among the co-managers, seek comment on the information and possible analyses, and then prepare analyses of the information to be used by the co-managers in developing a tribal allocation for use in 2010 and beyond. The goal was agreement among the co-managers on a total tribal allocation for incorporation into the Council's planning process for the 2010 season. An additional goal was to provide the tribes sufficient time and information to develop an inter-tribal allocation or other necessary management agreement. This process has been moving forward. In 2009, NMFS shared a preliminary report summarizing scientific information available on the migration and distribution of Pacific whiting on the west coast. The co-managers have met to discuss this information and plan further meetings. However, due to the detailed nature of this evaluation of the scientific information, and the need to negotiate a long-term tribal allocation following completion of the evaluation, the process was not completed in time for the 2010 Pacific whiting fishery.

Tribal Allocation for 2010

Both the Makah and Quileute have stated their intent to participate in the whiting fishery in 2010. The Quinault Nation has indicated that they plan to participate in the 2011 fishery, but not the 2010 fishery. Because the development of scientific information needed by the co-managers to negotiate a long term tribal allocation is not yet complete, NOAA Fisheries is moving forward with this proposed rule as an interim measure to address the allocation for and management of the 2010 tribal Pacific whiting fishery. As with the 2009 allocation, this proposed rule is not intended to establish any precedent for future whiting seasons or for the long-term tribal allocation of whiting.

The proposed rule would be implemented under authority of section 305(d) of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), 1801 et seq, which makes the Secretary responsible for “carrying out any fishery management plan or amendment approved or prepared by him, in accordance with the provisions of this Act.” With this proposed rule, NMFS, acting on behalf of the Secretary, would ensure that the FMP is implemented in a manner consistent with treaty rights of four Northwest tribes to fish in their “usual and accustomed grounds and stations” in common with non-tribal citizens.Washingtonv.Washington State Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 658, 674 (1979).

NMFS' proposed formula for determining the 2010 tribal allocation of whiting is based on discussions with the Makah and Quileute Tribes regarding their intent and needs for the 2010 fishing season, and on NMFS' preliminary review of the range of potential total tribal allocation suggested by current scientific information. The specific tribal allocation depends on the amount of the U.S. OY, which will be determined by the Pacific Fishery Management Council at their March 2010 meeting, based on an updated stock assessment. To accommodate the possibility that the U.S. OY of whiting might be different than in 2009, NMFS is proposing an approach for determining the 2010 tribal allocation that can account for a range of potential OYs. The Makah Tribe has requested the opportunity to harvest up to 17.5 percent of the U.S. OY of whiting in 2010. The Quileute Tribe has stated that it plans to have two boats participating in the 2010 fishery, and that it believes that 8,000 mt of whiting are necessary to ensure the economic viability of one boat. NMFS therefore proposes that the tribal allocation for 2010 be [17.5 percent * (U.S. OY)] + 16,000 mt. Assuming an OY similar to the 2009 OY, the tribal allocation under this approach would be 39,789 mt (29 percent of the OY). The highest OY in the last five years was 269,545 mt. At this level, the tribal allocation would be 63,170 mt (23 percent of the OY).

In its proposed rule regarding the 2009 tribal whiting allocation, NOAA Fisheries stated that it believed the 50,000 mt interim set aside for that year, although higher than the prior tribal set asides, is still clearly within the tribal treaty right to Pacific whiting. As described above, while further review of scientific information will occur in 2010, NMFS believes that current knowledge on the distribution and abundance of the coastal Pacific whiting stock reveals that the range of percentages of the OY proposed here lies within the range of tribal treaty rights to Pacific whiting.

Reapportionment

In addition to discussing the overall tribal allocation for the 2010 tribal whiting fishery, NMFS and the tribes discussed the issue of reapportionment of whiting from the tribal fishery to the non-tribal fishery. In this proposed rule, NMFS reasserts its regulatory authority to reapportion whiting from the tribal to the non-tribal fishery, consistent with 50 CFR 660 323(c).

NMFS currently has the authority to reapportion whiting between the non-tribal and tribal fisheries on an annual basis. This authority has been used in two instances: January 11, 2001 (66 FR 48370); and May 5, 2009 (74 FR 20620). However, during discussion between the tribes in 2009, the tribes lacked a consensus position on this issue. The Quileute and Quinault tribal fishery managers stated their belief that NMFS does not have authority to reapportion whiting to the non-tribal fishery, while the Makah tribal fishery managers stated their belief that NMFS does have the authority to do so. NMFS had hoped to come to consensus on this issue in advance of the March 2010 Council meeting, but was unable to do so. NMFS maintains that it currently has the regulatory authority to reapportion Pacific whiting, consistent with 50 CFR 660.323(c).

For 2010, the Regional Administrator will coordinate with the affected tribe(s) before any decisions are made on reapportionment of any portion of the tribal allocation of whiting.

Classification

At this time, NMFS has preliminarily determined that the management measures for the 2010 Pacific whiting tribal fishery are consistent with the national standards of the Magnuson-Stevens Act and other applicable laws. In making the final determination,NMFS will take into account the data, views, and comments received during the comment period.

NMFS has initially determined that this proposed rule is not significant for purposes of Executive Order 12866.

An Initial Regulatory Flexibility Analysis (IRFA) was prepared, as required by section 603 of the Regulatory Flexibility Act (RFA), 5 U.S.C. 600et seq.The IRFA describes the economic impact this proposed rule, if adopted, would have on small entities. A summary of the analysis follows. A copy of this analysis is available from NMFS (see ADDRESSES).

Under the RFA, the term “small entities” includes small businesses, small organizations, and small governmental jurisdictions. The Small Business Administration has established size criteria for all major industry sectors in the US, including fish harvesting and fish processing businesses. A business involved in fish harvesting is a small business if it is independently owned and operated and not dominant in its field of operation (including its affiliates), and if it has combined annual receipts not in excess of $4.0 million for all its affiliated operations worldwide. A seafood processor is a small business if it is independently owned and operated, not dominant in its field of operation, and employs 500 or fewer persons on a full-time, part-time, temporary, or other basis, at all its affiliated operations worldwide. A business involved in both the harvesting and processing of seafood products is a small business if it meets the $4.0 million criterion for fish harvesting operations. A wholesale business servicing the fishing industry is a small business if it employs 100 or fewer persons on a full-time, part-time, temporary, or other basis, at all its affiliated operations worldwide. For marinas and charter/party boats, a small business is one with annual receipts not in excess of $7.0 million. The RFA defines “small organizations” as any nonprofit enterprise that is independently owned and operated and is not dominant in its field. The RFA defines small governmental jurisdictions as governments of cities, counties, towns, townships, villages, school districts, or special districts with populations of less than 50,000.

In recent years the number of participants engaged in the Pacific whiting fishery has varied with changes in the whiting OY and economic conditions. Pacific whiting shoreside vessels (26 to 29), mothership processors (4 to 6), mothership catcher vessels (11 20), catcher/processors (5 to 9), Pacific whiting shoreside first receivers (8 16), and four tribal trawlers are the major units of this fishery. For 2010, an additional two tribal trawlers are expected to enter the fishery.

NMFS' records suggest the gross annual revenue for each of the catcher/processor and mothership operations operating off the coasts of Washington, Oregon, and California exceeds $4,000,000. Therefore, they are not considered small businesses. NMFS' records also show that 10 43 catcher vessels have taken part in the mothership fishery yearly since 1994. These companies are all assumed to be small businesses (although some of these vessels may be affiliated to larger processing companies). Since 1994, 26 31 catcher vessels participated in the shoreside fishery annually. These companies are all assumed to be small businesses (although some of these vessels may be affiliated to larger processing companies). Tribal trawlers are presumed to be small entities whereas the Tribes are presumed to be small government jurisdictions.

Pacific whiting has grown in importance, especially in recent years. Through the 1990s, the volume of Pacific whiting landed in the fishery increased. In 2002 and 2003, landings of Pacific whiting declined due to information showing the stock was depleted and the subsequent regulations that restricted harvest in order to rebuild the species. Over the years 2003 2007 estimated Pacific whiting ex-vessel values averaged about $29 million. In 2008, these participants harvested about 248,000 mt of whiting worth about $63 million in ex-vessel value based on shoreside ex-vessel prices of $254 per ton the highest ex-vessel revenues and prices on record. In comparison, the 2007 fishery harvested about 224,000 mt worth $36 million at an average ex-vessel price of about $160 per mt. Preliminary estimates of the 2009 fishery indicate that the tribal and non-tribal fleets harvested about 120,000 tons of whiting worth about $15 million. During 2009, ex-vessel prices declined to about $119 per mt, presumably due to the worldwide recession.

Relative to the 2009 allocation of 50,000 mt, the proposed Pacific whiting allocation for treaty Indian tribes ranges from a decrease of 10,211 mt (50,000 mt minus 39,789 mt) to an increase of 13,170 mt (63,170 mt minus 50,000 mt). In terms of the average 2009 ex-vessel price of $119 per mt, the proposed allocation of whiting to tribes ranges from a decrease of $1.2 million to an increase of $1.6 million with the 2009 initial allocation of 50,000 mt. Compared to the actual 2009 harvest of 20,446 mt and estimated ex-vessel tribal revenue of $2.4 million, on the low end, if the tribal allocation of 37,789 mt is harvested, tribal revenues would reach $4.5 million, or an increase of $2.3 million. On the high end, if the tribal allocation of 63,170 mt is harvested, tribal revenues would reach $7.5 million, an increase of $5.1 million.

Tribal fisheries are a mixture of the similar activities that non-tribal fisheries undertake as the tribal harvest will go shoreside for processing or to a mothership for at-sea processing. The processing facilities that the tribes use also process fish harvested by non-tribal fisheries. This rule directly regulates what entities can harvest whiting. Increased allocations to tribal harvesters (harvest vessels are small entities, tribes are small jurisdictions) implies decreased allocations to non-tribal harvesters (a mixture of small and large businesses). Note that in the instance where, by September 15, it is determined that some proportion of the whiting allocation to the tribal fishery is projected not to be harvested, the Regional Administrator may reapportion to the non-tribal whiting fishery.

There are no reporting, recordkeeping or other compliance requirements in the proposed rule.

No Federal rules have been identified that duplicate, overlap, or conflict with this action. This rule does not contain policies with federalism implications sufficient to warrant preparation of a federalism assessment under Executive Order 13132.

In 2005 NMFS reinitiated a formal section 7 consultation under the ESA for both the Pacific whiting midwater trawl fishery and the groundfish bottom trawl fishery. The December 19, 1999, Biological Opinion had defined an 11,000 Chinook incidental take threshold for the Pacific whiting fishery. During the 2005 Pacific whiting season, the 11,000 fish Chinook incidental take threshold was exceeded, triggering re-initiation. Also in 2005, new data from the West Coast Groundfish Observer Program became available, allowing NMFS to complete an analysis of salmon take in the bottom trawl fishery.

NMFS prepared a Supplemental Biological Opinion dated March 11, 2006, which addressed salmon take in both the Pacific whiting midwater trawl and groundfish bottom trawl fisheries. In its 2006 Supplemental Biological Opinion, NMFS concluded that catch rates of salmon in the 2005 whiting fishery were consistent with expectations considered during prior consultations. Chinook bycatch has averaged about 7,300 fish over the last 15 years and has only occasionally exceeded the reinitiation trigger of 11,000 fish.

Since 1999, when NMFS issued its previous opinion establishing the 11,000 fish threshold, annual Chinook bycatch has averaged about 8,450 fish. The Chinook Environmentally Significant Units (ESUs) most likely affected by the whiting fishery have generally improved in status since the 1999 Section 7 consultation. Although these species remain at risk, as indicated by their ESA listing, NMFS concluded that the higher observed bycatch in 2005 does not require a reconsideration of its prior “no jeopardy” conclusion with respect to the fishery. For the groundfish bottom trawl fishery, NMFS concluded that incidental take in the groundfish fisheries is within the overall limits articulated in the Incidental Take Statement of the 1999 Biological Opinion. The groundfish bottom trawl limit from that opinion was 9,000 fish annually. NMFS will continue to monitor and collect data to analyze take levels. NMFS also reaffirmed its prior determination that implementation of the Groundfish FMP is not likely to jeopardize the continued existence of any of the affected ESUs.

Lower Columbia River coho (70 FR 37160, June 28, 2005) were recently listed and Oregon Coastal coho (73 FR 7816, February 11, 2008) were recently relisted as threatened under the ESA. The 1999 biological opinion for salmonids concluded that the bycatch of these species in the Pacific whiting fishery were almost entirely Chinook salmon, with little or no bycatch of coho, chum, sockeye, and steelhead. The Southern Distinct Population Segment (DPS) of green sturgeon (71 FR 17757, April 7, 2006) were also recently listed as threatened under the ESA. As a consequence, NMFS has reinitiated its section 7 consultation on the Council's Groundfish FMP.

After reviewing the available information, NMFS concluded that, in keeping with sections 7(a) (2) and 7(d) of the ESA, the proposed action would not result in any irreversible or irretrievable commitment of resources that would have the effect of foreclosing the formulation or implementation of any reasonable and prudent alternative measures.

With regard to marine mammals, sea turtles, and seabirds, NMFS is reviewing the available data on fishery interactions and have entered into pre-consultation with the United States Fish and Wildlife Service, NMFS and other Federal agencies. In addition, NMFS has begun discussions with Council staff on the process to address the concerns, if any, that arise from our review of the data.

Pursuant to Executive Order 13175, this proposed rule was developed after meaningful consultation and collaboration with tribal officials from the area covered by the FMP. Under the Magnuson-Stevens Act, 16 U.S.C. 1852(b)(5), one of the voting members of the Pacific Council must be a representative of an Indian tribe with federally recognized fishing rights from the area of the Council's jurisdiction.

The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments regarding (a) whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility and clarity of the information to be collected; (d) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB),OIRA_Submission@OMB.EOP.GOVor fax (202) 395-5806 and to Departmental Clearance Office, USDA, OCIO, Mail Stop 7602, Washington, DC 20250-7602. Comments regarding these information collections are best assured of having their full effect if received within 30 days of this notification. Copies of the submission(s) may be obtained by calling (202) 720-8958.

An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.

Animal and Plant Health Inspection Service

Title:Poultry 2010 Study.

OMB Control Number:0579-NEW.

Summary of Collection:Collection and dissemination of animal health data and information is mandated by 7 U.S.C. 391, the Animal Industry Act of 1884, which established the precursor of the Animal and Plant Health Inspection Service (APHIS), Veterinary Services, the Bureau of Animal Industry. Legal requirements for examining and reporting on animal disease control methods were further mandated by 7 U.S.C. 8308 of the Animal Health Protect Act, “Detection, Control, and Eradication of Diseases and Pests,” May 13, 2002. Collection, analysis, and dissemination of livestock and poultry health information on a national basis are consistent with the APHIS mission of protecting and improving American agriculture's productivity and competitiveness. In connection with this mission, the National Animal Health Monitoring System (NAHMS) program includes periodic national commodity studies to investigate animal health related issues and examine general health and management practices used on farms. These studies are driven by industry and stakeholder interest, and information collected is not available from any other source on a national basis. Information about health and management practices on U.S. poultry operations is useful to the poultry industry as well as many federal and State partners.

Need and use of the information:APHIS will use the data collected to: (1) Establish national production measures for producer, veterinary, and industry reference; (2) Predict or detect national trends in disease emergence and movement; (3) Address emerging issues; (4) Provide estimates of both outcome (disease or other parameters) and exposure (risks and components) variables that can be used in analytic studies in the future by APHIS; (5) Provide input into the design of surveillance systems for specific diseases; and (6) Provide parameters for animal disease spread models. Without this type of data, the ability to detect trends in management, production, and health status, either directly or indirectly, would be reduced or nonexistent.

In accordance with the Paperwork Reduction Act of 1995, this notice announces the Rural Business-Cooperative Service's (RBS) intention to request an extension for a currently approved information collection in support of the Rural Cooperative Development Grants program.

DATES:

Comments on this notice must be received by May 11, 2010 to be assured of consideration.

Type of Request:Intent to extend the clearance for collection of information under RD Instruction 4284-F, Rural Cooperative Development Grants.

Abstract:The primary purpose of the Rural Business-Cooperative Service (RBS) is to promote understanding, use, and development of the cooperative form of business as a viable option forenhancing the income of agricultural producers and other rural residents. The primary objective of the Rural Cooperative Development Grants program is to improve the economic condition of rural areas through cooperative development. Grants will be awarded on a competitive basis to nonprofit corporations and institutions of higher education based on specific selection criteria.

Estimate of Burden:Public reporting burden for this collection of information is estimated to average 31 hours per grant application.

Copies of this information collection can be obtained from Linda Watts Thomas, Regulations and Paperwork Management Branch, at (202) 692-0226.

Comments

Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of RBS functions, including whether the information will have practical utility; (b) the accuracy of RBS' estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology. Comments may be sent to Jeanne Jacobs, Regulations and Paperwork Management Branch, U.S. Department of Agriculture, Rural Development, Stop 0742, 1400 Independence Ave., SW., Washington, DC 20250. All responses to this notice will be summarized and included in the request for OMB approval. All comments will also become a matter of public record.

In accordance with the Paperwork Reduction Act of 1995, this notice announces the Rural Business-Cooperative Service's (RBS) intention to request an extension for a currently approved information collection in support of the program for the Annual Survey of Farmer Cooperatives, as authorized in the Cooperative Marketing Act of 1926.

Type of Request:Extension of a currently approved information collection.

Abstract:The primary objective of Rural Business-Cooperative Service (RBS) is to promote understanding, use and development of the cooperative form of business as a viable option for enhancing the income of the agricultural producers and other rural residents. RBS' direct role is providing knowledge to improve the effectiveness and performance of farmer cooperative businesses through technical assistance, research, information, and education. The annual survey of farmer cooperatives collects basic statistics on cooperative business volume, net income, members, financial status, employees, and other selected information to support RBS' objective and role. Cooperative statistics are published in various reports and used by the U.S. Department of Agriculture, cooperative management, educators and others in planning and promoting the cooperative form of business.

Estimate of Burden:Public reporting burden for this collection of information is estimated to average 1 hour or less per response.

Respondents:Farmer cooperatives.

Estimated Number of Respondents:1,504.

Estimated Number of Responses per Respondent:1.

Estimated Number of Responses:1,504.

Estimated Total Annual Burden on Respondents:1,461 Hours.

Copies of this information collection can be obtained from Linda Watts Thomas, Regulations and Paperwork Management Division, at (202) 692-0226.

Comments

Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of RBS, including whether the information will have practical utility; (b) the accuracy of the RBS' estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or forms of information technology. Comments may be sent to Linda Watts Thomas, Regulation and Paperwork Management Branch, Support Services Division, U.S. Department of Agriculture, Rural Development, STOP 0742, Washington, DC 20250-0742. All responses to this notice will be summarized and included in the request for OMB approval. All comments will also become a matter of public record.

In accordance with the Paperwork Reduction Act of 1995 (44U.S.C. Chapter 35, as amended), the Rural Utilities Service (RUS) invites comments on this information collection for which approval from the Office of Management and Budget (OMB) will be requested.

The Office of Management and Budget's (OMB) regulation (5 CFR part 1320) implementing provisions of the Paperwork Reduction Act of 1995 (Pub. L. 104-13) requires that interested members of the public and affected agencies have an opportunity to comment on information collection and recordkeeping activities (see5 CFR 1320.8(d)). This notice identifies an information collection that RUS is submitting to OMB for approval. Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology. Comments may be sent to: Michele Brooks, Director, Program Development and Regulatory Analysis, Rural Utilities Service, U.S. Department of Agriculture, STOP 1522, 1400 Independence Avenue, SW., Washington, DC 20250-1522. FAX: (202) 720-8435. E-mail:michele.brooks@wdc.usda.gov.

Title:Technical Assistance Programs. OMB Control Number: 0572-0112.

Type of Request:Extension of a currently approved collection.

Abstract:The Rural Utilities Service is authorized by section 306 of the Consolidated Farm and Rural Development Act (7 U.S.C. 1926) to make loans to public agencies, American Indian tribes, and nonprofit corporations to fund the development of drinking water, wastewater, and solid waste disposal facilities in rural areas with populations of up to 10,000 residents. Under the CONACT, 7 U.S.C. 1925(a), as amended, section 306(a)(14)(A) authorizes Technical Assistance and Training grants, and 7 U.S.C. 1932(b), section 310B authorizes Solid Waste Management grants. Grants are made for 100 percent of the cost of assistance. The Technical Assistance and Training Grants and Solid Waste Management Grants programs are administered through 7 CFR part 1775.

Estimate of Burden:Public reporting for this collection of information is estimated to average 3 hours per response.

Respondents:Not-for-profit institutions.

Estimated Number of Respondents:142.

Estimated Number of Responses per Respondent:17.

Estimated Total Annual Burden on Respondents:6,250.

Copies of this information collection can be obtained from Gale Richardson, Program Development and Regulatory Analysis, at (202) 720-0992. FAX: (202) 720-8435. All responses to this notice will be summarized and included in the request for OMB approval. All comments will also become a matter of public record.

Notice of Contract for Proposal (NOCP); additional payment for advanced biofuel produced from October 1, 2008 through September 30, 2009.

SUMMARY:

RBS is announcing additional payments to advanced biofuel producers determined eligible in Fiscal Year 2009 for the Bioenergy Program for Advanced Biofuels under criteria established in the prior NOCP, which was published in this publication on June 12, 2009 (74 FR 27998). All payments will be made based upon the terms and conditions provided in the prior NOCP. This NOCP announces the availability of the remaining Fiscal Year 2009 funds that were not distributed under the previous NOCP, which authorized $30 million for Fiscal Year 2009.

DATES:

Submission of requests to be considered for additional payments for this program must be received by May 30, 2010.

ADDRESSES:

Written requests for an additional payment must be sent to the USDA, Rural Development State Office, Renewable Energy Coordinator in the State in which the producer's principal office is located. The previous NOCP contains the Renewable Energy Coordinator contact information.

On June 12, 2009, RBS published a Notice of Contract Proposals (NOCP) and Solicitation of Applications in theFederal Registerannouncing policy and application procedures for the Bioenergy Program for Advanced Biofuels. In response to the previously published NOCP, approximately $14.5 million in contracts between the U.S. Department of Agriculture and producers of advanced biofuels were executed.

This NOCP announces the availability of the remaining Fiscal Year 2009 funding to support the Production of Advanced Biofuels under the terms of eligibility of the previous NOCP. This program is authorized under Title IX, Section 9001, of the Food, Conservation, and Energy Act of 2008 (Pub. L. 110-234). Subject to the conditions identified in this NOCP, requests for additional payments will be evaluated, and executed based upon the terms and conditions outlined in the prior NOCP. The Agency will authorize the use of the remaining fiscal year 2009 funds for the additional payments. Funds will be deposited directly into the producer's account.

The payments being made under this NOCP are one-time payments to distribute remaining FY 2009 funds.

Request for Additional Payment and Submission Information

Only advanced biofuels producers determined eligible under the FY 2009 NOCP can submit a request for an additional payment. Payment rate will be determined on the actual amount of BTUs produced from eligible AdvancedBiofuels produced in FY 2009 and the number of producers who request additional payments under this NOCP.

1. If an eligible producer received a payment in FY 2009, a written request must be submitted to the appropriate USDA, Rural Development Renewable Energy Coordinator. The request must acknowledge this is an additional one-time payment for the actual amount produced in FY 2009.

2. If an eligible producer had a valid executed contract, but did not submit a request for payment for the advanced biofuel produced in FY 2009, the request must include:

• Documentation verifying the actual amount of advanced biofuel produced in FY 2009; and

• SF-3881, “Electronic Funds Transfer Payment Enrollment Form.”

Additional documentation and access to same may be required if the producer's submittal is not sufficient to verify eligibility for payment or quantity of the Advanced Biofuel product.

Paperwork Reduction Act

In accordance with the Paperwork Reduction Act, the paperwork burden associated with this Notice of Contract for Proposal (NOCP) has been approved by the Office of Management and Budget (OMB) under OMB Control Number 0570-0057.

The PRA burden associated with the original NOCP, published on June 12, 2009, was approved by OMB under emergency conditions, with an opportunity to comment on the burden associated with the program, and was intended to be a one-time approval. Since the publication of the original NOCP, the Agency did not allocate all of the FY 2009 authorized funds because actual production did not meet the estimated production used to determine payment rates. Therefore, the Agency is seeking to make additional payments to eligible Advanced Biofuel Producers from remaining fiscal year 2009 funds.

Under this NOCP, the Agency is providing additional payments to producers of advanced biofuels determined by the Agency to be eligible for the program in order to further support the production of advanced biofuels. To obtain these additional payments, producers who signed a contract (Form RD 9005-2) and submitted a payment request (Form RD 9005-3) must acknowledge that receiving payment from the remaining fiscal year 2009 funds is a one-time payment. Producers who signed a contract, but did not submit a payment request, must submit a payment request form, including documentation verifying the actual amount of advanced biofuel produced in fiscal year 2009, and an electronic funds transfer payment enrollment form (SF-3881). Producers determined by the Agency to be eligible, but who did not sign a contract with the Agency, must submit the contract form, a payment request form, including documentation verifying the actual amount of advanced biofuel produced in fiscal year 2009, and an electronic funds transfer payment enrollment form. The collection of this information is necessary to ensure that appropriate payments are made to eligible producers of Advanced Biofuels.

All of the forms, information, certifications, and agreements required to apply for these additional payments under this NOCP have been authorized under OMB Control Number 0570-0057. Since the emergency approval of the original NOCP for this program, the Agency has resubmitted the PRA package to OMB and received regular approval. Applications and accompanying materials required under this NOCP will be covered under the regular PRA package.

Nondiscrimination Statement

USDA prohibits discrimination in all its programs and activities on the basis of race, color, national origin, age, disability, and where applicable, sex, marital status, familial status, parental status, religion, sexual orientation, genetic information, political beliefs, reprisal, or because all or part of an individual's income is derived from any public assistance program. (Not all prohibited bases apply to all programs.) Persons with disabilities who require alternative means for communication of program information (Braille, large print, audiotape, etc.) should contact USDA's TARGET Center at (202) 720-2600 (voice and TDD). To file a complaint of discrimination, write to USDA, Director, Office of Civil Rights, 1400 Independence Avenue, SW., Washington, DC 20250-9410, or call (800) 795-3272 (voice), or (202) 720-6382 (TDD). “USDA is an equal opportunity provider, employer, and lender.”

Notice of availability of program funds for the Chesapeake Bay Watershed Initiative.

SUMMARY:

The Commodity Credit Corporation (CCC) and the Natural Resources Conservation Service (NRCS) announce the availability of up to $44,158,381 of technical and financial assistance funding in fiscal year (FY) 2010 through the Chesapeake Bay Watershed Initiative for agricultural producers in the Chesapeake Bay watershed in the States of Delaware, Maryland, New York, Pennsylvania, Virginia, and West Virginia. The Chesapeake Bay Watershed Initiative funds are available to help producers implement natural resources conservation practices on agricultural lands.

CCC and NRCS hereby announce the availability of up to $44,158,381 to provide technical and financial assistance to producers through the Chesapeake Bay Watershed Initiative in FY 2010.

Section 1240Q of the Food Security Act of 1985, as amended by the Food,Conservation, and Energy Act of 2008, established the Chesapeake Bay Watershed Initiative and defined the Chesapeake Bay watershed to mean all tributaries, backwaters, and side channels, including their watersheds, draining into the Chesapeake Bay. This area includes portions of the States of Delaware, Maryland, New York, Pennsylvania, Virginia, and West Virginia. The NRCS administers the Chesapeake Bay Watershed Initiative and carries out program implementation using funds, facilities, and authorities of the CCC. The Initiative gives special, but not exclusive, consideration to producers' applications in the following river basins: Susquehanna River, Shenandoah River, Potomac River (including North and South), and the Patuxent River.

The Chesapeake Bay Watershed Initiative helps agricultural producers improve water quality and quantity, and restore, enhance, and conserve soil, air, and related resources in the Chesapeake Bay watershed through the implementation of conservation practices. These conservation practices reduce soil erosion and nutrient levels in ground and surface water; improve, restore, and enhance wildlife habitat; and help address air quality and related natural resource concerns. The Initiative is carried out through the various natural resources conservation programs authorized under Subtitle D, Title XII of the Food Security Act of 1985, as amended. The Chesapeake Bay Watershed Initiative assistance in FY 2010 will be delivered through the Environmental Quality Incentives Program (EQIP) and the Cooperative Conservation Partnership Initiative (CCPI) which consists of EQIP and the Wildlife Habitat Incentive Program (WHIP). All EQIP, CCPI, and WHIP requirements and policies will apply.

Individuals interested in applying for Chesapeake Bay Watershed Initiative assistance may contact their local USDA service center in the eligible Chesapeake Bay Watershed Initiative States. A listing of local service centers can be found at:http://offices.sc.egov.usda.gov/locator/app?agency=nrcs.

Corrected Notice of Intent to prepare an Environmental Impact Statement for the USA and State South Branch 1-8 well. The original notice was published on 2/24/10.

SUMMARY:

The Huron-Manistee National Forests (Forest Service) and the Bureau of Land Management (BLM), as a Cooperating Agency, will prepare an environmental impact statement (EIS) to assess the environmental impacts of an industry proposal to drill one exploratory natural gas well, the USA & State South Branch 1-8 (SB 1-8) well, on National Forest System lands. The EIS will also assess the impacts of constructing necessary infrastructure, including production facility and flowline, should the well be capable of producing hydrocarbons in commercial quantities. This analysis will allow the agencies to make their respective decisions on this proposal in accordance with federal regulations.

DATES:

Comments concerning the scope of the analysis must be received by April 26, 2010. The Draft EIS is expected in December 2010 and the Final EIS is expected by July 2011.

Ken Arbogast, Huron-Manistee National Forests; telephone: 231-775-2421; fax: 231-775-5551. See address above underAddresses.Copies of documents may be requested at the same address. Another means of obtaining information is to visit the Forest Web page athttp://www.fs.fed.us/r9/hmnfthen click on “Projects and Planning”, then “Mio projects”, and then “USA and State South Branch 1-8.”

Individuals who use telecommunication devices for the deaf (TTY) may call 1-231-775-3183.

SUPPLEMENTARY INFORMATION:Purpose and Need for Action

The purpose for action is to respond to the proponent's, Savoy Energy, L.P.'s (Savoy), proposal to exercise its rights under Federal leases to drill for, extract, remove and dispose of all the oil and gas from leased lands. The Huron-Manistee National Forests (Forest Service) and the Bureau of Land Management (BLM) received an Application for Permit to Drill (APD), including a Surface Use Plan of Operation (SUPO), from Savoy.

A response to the application is needed because Savoy has lawful oil and gas rights to three state and three federal leases in a 640-acre drilling unit and the Forest Supervisor (FS) and the Milwaukee Field Office Manager (BLM) are required by regulation to evaluate and decide upon operating plans received from industry for exploration and development of federal leases. The agencies must ensure Savoy's operating plan is consistent with the terms and stipulations of the federal mineral leases, applicable laws and regulations, the Huron-Manistee's Land and Resource Management Plan, and identify any additional conditions needed to protect federal resources.

The BLM ultimately renders a decision on the APD, and the Forest Service must review and decide upon the SUPO before the BLM can make its APD decision.

Proposed Action

The Forest Service proposes to authorize Savoy to conduct surface operations associated with accessing, drilling, testing, and completing the USA and State South Branch 1-8 well, as described in the SUPO and APD submitted to the BLM. The Forest Service would approve the SUPO for the USA and State South Branch 1-8 Well.

The BLM proposes to authorize Savoy to conduct operations to drill, test and complete the proposed exploratory well on the subject leases and approve the APD submitted for this well.

The Forest Service and BLM authorization would include reasonable and necessary mitigation to ensure Savoy's operations would be in compliance with law, regulation, and policy.

Savoy holds six subsurface mineral leases included in a 640-acre drilling unit in South Branch Township (T25N, R1W), Crawford County, Michigan, Section 7: E1/2, Section 8: W1/2. This 640-acre drilling unit includes three state and three federal oil and gas leases. Savoy is proposing to drill directionally from National Forest System lands within the boundaries of the Huron-Manistee National Forests to the bottomhole located in Federal mineral lease MIES 50521, approximately 2,200 feet northwest of the surface hole, and construct associated infrastructure including a production facility andflowline if Savoy determines the well could produce a commercial product.

Savoy's proposal includes: Leveling of the well pad (approximately 3.5 acres) for the drilling rig, equipment, and pit, including some minor cut and fill. It also includes the use, reconstruction and maintenance of portions of existing roads for year-round access, including snow plowing along a section of River Lake Road (aka Hickey Creek Road), a section of FSR 4209 (road which ends at the Mason Chapel), and a section of FSR 4208 to access the well site; construction and maintenance of 50 feet of new road off FSR 4208, 14 feet wide with three feet of clearing on each side (approximately 0.05 acre of disturbance) to access the well pad; and drilling a water well at the well pad site to provide water for drilling and future well maintenance, if needed. Following these activities drilling equipment would be moved in and rigged up.

Drilling and well completion would be expected to take 45 days. Drilling operations would be restricted to a time period between December 1 and April 15. The well pad would be approximately 3.5 acres in size. Standard and accepted drilling techniques and practices would be used and must comply with minimum operating standards approved by Michigan Department of Natural Resources and Environment (MDNRE) and the BLM. These standards address the casing program, pressure control equipment, H2S contingency plans, and proposed drilling fluids program. Hazardous materials, including stimulation and completion fluids, would be contained in steel tanks and disposed of by a licensed waste hauler.

Additional actions proposed, if the well is productive, include: Construction of a production facility located in SE, Section 9, T25N, R1W (approximately 1.5 miles from the well pad) on approximately 2.0 acres, including installation of a gas/water separator, condensate (if needed) and brine tanks, dehydrator, compressor, volume bottle, and measurement (monitoring) equipment; installation of flowlines from the well site to the production facility site, buried alongside the roadbed, and a pipeline to the Michigan Consolidated Gas transmission line, totaling approximately 1.7 miles. Reclamation of a portion of the well pad would occur following drilling and completion, leaving approximately1/3acre to be used for well operations.

If the well is not capable of commercial production, the operator would plug and abandon the well under applicable State and BLM rules and regulations. Reclamation of the site, according to the reclamation plan included with the SUPO, would occur within six months of completion of well plugging. This would include: Recontouring and stabilizing all excavations, spreading of topsoil reserved during site construction over the disturbed well pad area, and seeding with a Forest Service approved mix. The flowline route would be restored and the 50-foot length of new access road would be obliterated.

MDNRE's Water Quality Management Practices on Forest Land and the BLM/Forest Service's Surface Operating Standards and Guidelines for Oil and Gas Exploration and Development will be used to manage the roads. Additionally, prior to reconstructing FSR 4209, approximately 150 feet of silt fence would be placed per Forest Service direction adjacent to the south side of the road for wetland protection.

The operator would maintain a dike around the condensate and brine tanks at the production facility of sufficient size and height so as to contain 150% of the total capacity of the tanks.

The width of the reconstructed roads would not exceed 14 feet. An additional three feet of clearing would be done on each side of the road. Clearing width would not exceed 20 feet.

Soil disturbed with the placement of the flowline/pipeline would be seeded with a seed mix specified by the Forest Service.

Roads into the well pad and production facility would be gated and locked.

Road design and construction would take into account visual quality.

Minimization of noise is to be emphasized during drilling, completion, and production operations. Hospital-type engine mufflers would be used on drilling, completion, and workover rigs, and on mud pumps and compressors. No pumps or motors would be placed on the surface of the well or at the well site during the production phase. If the production facility is processing gas from one well, the sound level would not exceed 33 dBA at 1,320 feet. If more than one well is produced from the proposed facility, the total sound level for the production facility would not exceed 36 dBA at 1,320 feet. The production facility would be constructed to meet these sound levels.

Off-road equipment would be inspected by a Forest Service representative and washed if needed to prevent introduction of non-native invasive plants that are not already present in the project area.

Protection will be provided for Endangered, Threatened and Sensitive Species in accordance with law, regulation and policy.

The Forest Service, the BLM, and MDNRE will coordinate inspections to ensure compliance with requirements.

Possible Alternatives to the Proposed Action

No Action Alternative: The Forest Service would not approve the SUPO and/or the BLM would not approve the APD. Current direction would continue to guide management of the project area. The SB 1-8 well would not be drilled, no flowlines would be installed, and no production facility would be constructed.

Modification of Savoy's Proposal Alternative: The Forest Service would approve the SUPO and the BLM would approve the APD subject to additional conditions of approval based on mitigation developed in response to issues raised during the public scoping period.

Lead and Cooperating Agencies

The BLM and the Forest Service entered into a Memorandum of Understanding (MOU) in April 2006 “to establish procedures for the coordinated administration of oil and gas operations on Federal leases within the National Forest System (NFS).” The MOU identifies the responsibilities of the agencies to provide efficient, effective adherence to rules and regulations for each. Specifically, the MOU states,

“IIIA3. * * * the Forest Service has the full responsibility and authority to approve and regulate all surface-disturbing activities associated with oil and gas exploration and development through analysis and approval of the SUPO component of an APD.” “VB1. * * * Forest Service will: Serve as lead agency for oil and gas * * * environmental analyses required for APDs * * *.” “IIIA2. The BLM has the authority and responsibility to provide final approval of all APDs, including those for operations on Federal leases on NFS lands * * *. The BLM has the authority and responsibility to regulate all down-hole operations and directly related surface activities and use, and provide approval of the drilling plan and final approval of the APD on NFS lands.”

This MOU is consistent with the NEPA regulations, 40 CFR 1501.5 Lead Agency and 1501.6 Cooperating Agencies, identifying the Forest Service as the lead agency and the BLM as the cooperating agency.

The Forest Supervisor of the Huron-Manistee National Forests will issue a decision on whether to approve, approve subject to specified conditions, or disapprove for stated reasons the proposed SUPO for development of the SB 1-8 well and construction and operation of the flowline/pipeline and production facilities. Similarly, the BLM Field Manager in Milwaukee will issue a decision on whether to approve the APD as submitted, approve subject to appropriate modifications or conditions, or disapprove for stated reasons.

Preliminary Issues

We expect issues to include possible effects of noise, odor and changes to the visual quality from the project for anglers and visitors to the Semi-Primitive Nonmotorized Area and Mason Tract, as well as the possible effects of the project on tourism in the county.

Permits and Licenses Required

Savoy will be required to obtain a State permit for drilling from the MDNRE.

Scoping Process

This Notice of Intent initiates the scoping process, which guides the development of the Environmental Impact Statement. The Forest Service plans to scope for information by contacting persons and organizations interested or potentially affected by the proposed action through mailings, public announcements, and personal contacts.

It is important that reviewers provide their comments at such times and in such manner that they are useful to the agency's preparation of the EIS. Therefore, comments should be provided prior to the close of the comment period and should clearly articulate the reviewer's concerns and contentions. The submission of timely and specific comments can affect a reviewer's ability to participate in subsequent administrative appeal or judicial review.

We are especially interested in information that might identify a specific undesired result of implementing the proposed action. Comments will be used to help formulate alternatives to the proposed action. Please make your written comments as specific as possible, as they relate to the proposed action, and include your name, address, and if possible, telephone number and e-mail address.

Comments received in response to this solicitation, including names and addresses of those who comment, will be considered part of the public record on this proposed action and will be available for public inspection. Comments submitted anonymously will be accepted and considered; however, those who submit anonymous comments will not have standing to appeal the subsequent decisions under 36 CFR Part 215. Additionally, pursuant to 7 CFR 1.27(d), any persons may request the agency to withhold a submission from the public record by showing how the Freedom of Information Act (FOIA) permits such confidentiality. Persons requesting such confidentiality should be aware that, under FOIA, confidentiality may be granted in only very limited circumstances, such as to protect trade secrets. The Forest Service will inform the requester of the agency's decision regarding the request for confidentiality and, should the request be denied, return the submission and notify the requester that the comments may be resubmitted with or without name and address within 90 days.

RBS is announcing a new application window to submit application for the Biorefinery Assistance Program under criteria established in the prior NOFA, which was published in this publication on November 20, 2008 (73 FR 70544). All loan guarantees will be made based upon the terms and conditions illustrated in the prior NOFA, which made available $75 million in budget authority. Not all of this budget authority has been awarded by the Agency. Therefore, the Agency is requesting additional applications in order to award the remaining Fiscal Year 2009 budget authority. There will only be one application window under this notice.

DATES:

Applications for participating in this program must be received by June 1, 2010.

On November 20, 2008, RBS published a Notice of Funding Availability (NOFA) and Solicitation of Applications in theFederal Registerannouncing general policy and application procedures for the Biorefinery Assistance Program. This Notice is for a one-time application window for remaining FY 2009 funds. An application guide for this program is available to assist in developing applications (see http://www.rurdev.usda.gov/rbs/busp/baplg9003.htm).

Paperwork Reduction Act

In accordance with the Paperwork Reduction Act (PRA), the paperwork burden associated with this Notice of Funds Availability (NOFA) has been approved by the Office of Management and Budget (OMB) under OMB Control Number 0570-0055.

The PRA burden associated with the original Notice, published on November 20, 2008, was approved by OMB, with an opportunity to comment on the burden associated with the program. Since the publication of the original Notice, the Agency has not received a sufficient number of qualified applications to allocate all of the FY 2009 authorized funds. Therefore, the Agency is opening a new application window to accept additional applications for the remaining FY 2009 funds for this program.

Biorefineries seeking funding under this program have to submit applications that include specified information, certifications, and agreements. All of the forms, information, certifications, and agreements required to apply for this program under this Notice have been authorized under OMB Control Number 0570-0055. Applications and accompanying materials required under this Notice will be covered under OMB Control Number 0570-0055.

Nondiscrimination Statement

USDA prohibits discrimination in all its programs and activities on the basisof race, color, national origin, age, disability, and where applicable, sex, marital status, familial status, parental status, religion, sexual orientation, genetic information, political beliefs, reprisal, or because all or part of an individual's income is derived from any public assistance program. (Not all prohibited bases apply to all programs.) Persons with disabilities who require alternative means for communication of program information (Braille, large print, audiotape, etc.) should contact USDA's TARGET Center at (202) 720-2600 (voice and TDD). To file a complaint of discrimination, write to USDA, Director, Office of Civil Rights, 1400 Independence Avenue, SW., Washington, DC 20250-9410, or call (800) 795-3272 (voice), or (202) 720-6382 (TDD). “USDA is an equal opportunity provider, employer, and lender.”

RBS is announcing a new application window to submit applications for the Repowering Assistance Program under criteria established in the prior NOFA, which was published in this publication on June 12, 2009 (74 FR 28009). All payments will be made based upon the terms and conditions provided in the prior NOFA, which authorized $20 million for Fiscal Year (FY) 2009. This notice announces the availability of the remaining FY 2009 funds that were not requested under the previous NOFA.

DATES:

Applications for participating in this program must be received by June 15, 2010.

On June 12, 2009, RBS published a Notice of Funds Availability (NOFA) and Solicitation of Applications in theFederal Registerannouncing general policy and application procedures for the Repowering Assistance Program. Not all this funding was used and the remaining FY 2009 funding is available to make payments to eligible biorefineries to encourage the use of renewable biomass as a replacement fuel source for fossil fuels used to provide process heat or power in the operation of these eligible biorefineries. This Notice is for a one-time application window for remaining FY 2009 funds.

Paperwork Reduction Act

In accordance with the Paperwork Reduction Act (PRA), the paperwork burden associated with this Notice of Funds Availability (NOFA) has been approved by the Office of Management and Budget (OMB) under OMB Control Number 0570-0058.

The PRA burden associated with the original FY 2009 Notice was approved by OMB under emergency conditions, with an opportunity to comment on the burden associated with the program, and was intended to be a one-time approval. Since the emergency approval of the original FY 2009 Notice for this program, the Agency has resubmitted the PRA package to OMB and received regular approval. Applications and accompanying materials required under this Notice will be covered under the regular PRA package.

Since the publication of the FY 2009 Notice, the Agency has not received a sufficient number of qualified applications to allocate all of the FY 2009 authorized funds. Therefore, the Agency is opening a new application window to accept additional applications for the remaining FY 2009 funds for this program.

Biorefineries seeking funding under this program have to submit applications that include specified information, certifications, and agreements. Forms specific to the Repowering Assistance Program approved under OMB Control Number 0570-0058 are: (1) Form RD 9004-1, “Repowering Assistance Program Application,” and (2) Form RD 9004-2, “Repowering Assistance Program Agreement.” All of the forms, information, certifications, and agreements required to apply for this program under this Notice have been authorized under the emergency request and approved under OMB Control Number 0570-0058.

Nondiscrimination Statement

USDA prohibits discrimination in all its programs and activities on the basis of race, color, national origin, age, disability, and where applicable, sex, marital status, familial status, parental status, religion, sexual orientation, genetic information, political beliefs, reprisal, or because all or part of an individual's income is derived from any public assistance program. (Not all prohibited bases apply to all programs.) Persons with disabilities who require alternative means for communication of program information (Braille, large print, audiotape, etc.) should contact USDA's TARGET Center at (202) 720-2600 (voice and TDD). To file a complaint of discrimination, write to USDA, Director, Office of Civil Rights, 1400 Independence Avenue, SW., Washington, DC 20250-9410, or call (800) 795-3272 (voice), or (202) 720-6382 (TDD). “USDA is an equal opportunity provider, employer, and lender.”

The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995.

Requests for additional information or copies of the information collection instrument and instructions should bedirected to Larry Hall, BIS ICB Liaison, (202) 482-4895,lhall@bis.doc.gov.

SUPPLEMENTARY INFORMATION:

I. Abstract

This information is collected as supporting documentation for license applications to export petroleum (crude oil) and is used by licensing officers to determine the exporter's compliance with the five statutes governing such transactions.

II. Method of Collection

Submitted electronically or in paper form.

III. Data

OMB Control Number:0694-0027.

Form Number(s):None.

Type of Review:Regular submission.

Affected Public:Business or other for-profit organizations.

Estimated Number of Respondents:76.

Estimated Time per Response:38 minutes to 8 hours.

Estimated Total Annual Burden Hours:138.

Estimated Total Annual Cost to Public:$0.

IV. Request for Comments

Comments are invited on:(a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.

Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.

Notice of Application (#10-00002) for an Export Trade Certificate of Review from EFS International Corporation/DBA: EFS Global Trade and Export (“EFS”).

SUMMARY:

Export Trading Company Affairs (“ETCA”), International Trade Administration, Department of Commerce, has received an application for an Export Trade Certificate of Review (“Certificate”). This notice summarizes the conduct for which certification is sought and requests comments relevant to whether the Certificate should be issued.

FOR FURTHER INFORMATION CONTACT:

Joseph E. Flynn, Director, Office of Competition and Economic Analysis, International Trade Administration, by telephone at (202) 482-5131 (this is not a toll-free number) or E-mail atoetca@ita.doc.gov.

SUPPLEMENTARY INFORMATION:

Title III of the Export Trading Company Act of 1982 (15 U.S.C. 4001-21) authorizes the Secretary of Commerce to issue Export Trade Certificates of Review. An Export Trade Certificate of Review protects the holder and the members identified in the Certificate from state and federal government antitrust actions and from private treble damage antitrust actions for the export conduct specified in the Certificate and carried out in compliance with its terms and conditions. Section 302(b)(1) of the Export Trading Company Act of 1982 and 15 CFR 325.6(a) require the Secretary to publish a notice in theFederal Registeridentifying the applicant and summarizing its proposed export conduct.

Request for Public Comments

Interested parties may submit written comments relevant to the determination whether a Certificate should be issued. If the comments include any privileged or confidential business information, it must be clearly marked and a nonconfidential version of the comments (identified as such) should be included. Any comments not marked privileged or confidential business information will be deemed to be nonconfidential. An original and five (5) copies, plus two (2) copies of the nonconfidential version, should be submitted no later than 20 days after the date of this notice to: Export Trading Company Affairs, International Trade Administration, U.S. Department of Commerce, Room 7021-X H, Washington, DC 20230, or transmit by E-mail atoetca@ita.doc.gov.Information submitted by any person is exempt from disclosure under the Freedom of Information Act (5 U.S.C. 552). However, nonconfidential versions of the comments will be made available to the applicant if necessary for determining whether or not to issue the Certificate. Comments should refer to this application as “Export Trade Certificate of Review, application number 10-00002.” A summary of the application follows.

Export Trade Facilitation Services including, but not limited to, professional services in the areas of government relations and assistance with state and federal programs; foreign trade and business protocol; consulting; market research and analysis; collection of information on trade opportunities; marketing; negotiations; joint ventures; shipping; export management; export licensing; advertising; documentation and services related to compliance with customs requirements; insurance and financing; trade show exhibitions; organizational development; management and labor strategies; transfer of technology; transportationservices; and facilitating the formation of shippers' associations.

II. Export Markets

The Export Markets include all parts of the world except the United States (the fifty states of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, American Samoa, Guam, the Commonwealth of the Northern Mariana Islands, and the Trust Territory of the Pacific Islands).

III. Export Trade Activities and Methods of Operation

1. With respect to the export of Products and Services, licensing of Technology Rights and provision of Export Trade Facilitation Services, EFS International, subject to the terms and conditions listed below, may:

a. Provide and/or arrange for the provisions of Export Trade Facilitation Services and engage in promotional and marketing activities;

b. Collect information on trade opportunities in the Export Markets and distribute such information to clients;

g. Establish the price of Products, Services, and/or Technology Rights for sales and/or licensing in Export Markets; and taking title to when provided in order to facilitate the export of goods or services produced in the United States;

j. Refuse to provide Export Trade Facilitation Services to customers in any Export Market or Markets.

2. EFS International may exchange information with individual Suppliers on a one-to-one basis regarding that Supplier's inventories and near-term production schedules in order that the availability of Products for export can be determined and effectively coordinated by EFS International with its distributors in Export Markets.

IV. Terms and Conditions

1. In engaging in Export Trade Activities and Methods of Operation, EFS International will not intentionally disclose, directly or indirectly, to any Supplier any information about any other Supplier's costs, production, capacity, inventories, domestic prices, domestic sales, or U.S. business plans, strategies, or methods that is not already generally available to the trade or public.

2. EFS International will comply with requests made by the Secretary of Commerce on behalf of the Secretary or the Attorney General for information or documents relevant to conduct under the Certificate. The Secretary of Commerce will request such information or documents when either the Attorney General or the Secretary of Commerce believes that the information or documents are required to determine that the Export Trade, Export Trade Activities and Methods of Operation of a person protected by this Certificate of Review continue to comply with the standards of section 303(a) of the Act.

Dated: March 8, 2010.Joseph E. Flynn,Director, Office of Competition and Economic Analysis.[FR Doc. 2010-5388 Filed 3-11-10; 8:45 am]BILLING CODE 3510-DR-PDEPARTMENT OF COMMERCENational Oceanic and Atmospheric AdministrationRIN 0648-AY72Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Amendment 10 to the Fishery Management Plan for Spiny Lobster Resources of the Gulf of Mexico and South AtlanticAGENCY:

National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

NMFS, Southeast Region, in collaboration with the Gulf of Mexico and South Atlantic Fishery Management Councils (Councils) intends to prepare an EIS to describe and analyze a range of alternatives for management actions to be included in an amendment to the Fishery Management Plan for the Spiny Lobster Resources of the Gulf of Mexico and South Atlantic (FMP). These alternatives will consider measures to set annual catch limits (ACLs) and accountability measures (AMs) for Caribbean spiny lobster; delegate management of Caribbean spiny lobster to Florida; remove from the FMP or reclassify several other species of lobster currently in the FMP; establish sector allocations; redefine biological reference points; update the framework process; and set other management measures. The purpose of this NOI is to solicit public comments on the scope of issues to be addressed in the EIS.

DATES:

Written comments on the scope of issues to be addressed in the EIS must be received by NMFS by April 12, 2010.

ADDRESSES:

You may submit comments, identified by RIN 0648-AY72, by any one of the following methods:

Instructions: No comments will be posted for public viewing until after the comment period is over. All comments received are a part of the public record and will All comments received are a part of the public record and will generally be posted tohttp://www.regulations.govwithout change. All Personal Identifying Information (for example, name, address, etc.) voluntarily submitted by the commenter may be publicly accessible. Do not submit Confidential Business Information or otherwise sensitive or protected information. Comments should apply to the control date as an eligibility requirement for a catch share program, not the catch share program itself.

To submit comments through the Federal e-Rulemaking Portal:http://www.regulations.gov, enter “NOAA-NMFS-2010-0044” in the keyword search, then select “Send a Comment or Submission.” NMFS will accept anonymous comments (enter N/A in the required fields, if you wish to remain anonymous). You may submit attachments to electronic comments in Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only.

FOR FURTHER INFORMATION CONTACT:

Susan Gerhart; phone: (727) 824-5305.

SUPPLEMENTARY INFORMATION:

In 2006, the Magnuson-Stevens Fishery Conservation and Management Act was re-authorized and included a number ofchanges to improve conservation of managed fishery resources. Included in these changes are requirements that the Regional Councils establish both a mechanism for specifying ACLs at a level such that overfishing does not occur in a fishery and AMs to correct if overages occur. This EIS would analyze actions to set initial ACLs and AMs for Caribbean spiny lobster and possibly other lobster species in the fishery management unit.

The highest landings and most Federal regulations are for the Caribbean spiny lobster (Panulirus argus). One action under consideration would delegate some Caribbean spiny lobster regulations (e.g., bag/possession limits and size limits) to the Florida Fish and Wildlife Conservation Commission (FWC). If regulations under the FMP are delegated to Florida FWC, NMFS and the Councils would still need to meet the ACL and AM requirements of the Magnuson-Stevens Act.

Four other species of lobster are within the FMP: the smoothtail spiny lobster (Panulirus laevicaus), the spotted spiny lobster (Panulirus guttatus), the Spanish slipper lobster (Scyllarides aequinoctialis), and the ridged slipper lobster (Scyllarides nodifer). Only the ridged slipper lobster is specified in the regulations; the other species are in the management unit for data collection purposes only. Because landings information is scarce and incomplete, setting ACLs would be difficult for these species. The Councils could list these four species as ecosystem components or remove them from the FMP; in either case, ACLs and AMs would not be required.

Current definitions of maximum sustainable yield (MSY), optimum yield (OY), overfishing, and overfished were set for Caribbean spiny lobster in Amendment 6 to the FMP. Currently, the Gulf of Mexico and South Atlantic Councils have different definitions for each biological reference point. The Councils may modify these definitions based on the results of an upcoming stock assessment and the recommendation of the Council Scientific and Statistical Committees. A single definition for each biological reference point that could be used by both Councils would simplify management.

The implementation process for a plan amendment can take over a year from initial scoping to final implementation. Framework procedures provide a mechanism for timelier implementation of routine actions such as setting ACLs, and a guideline for implementing such actions in a consistent manner. The Spiny Lobster FMP framework procedure was set in Amendment 2 to the FMP and allows changes to be made to gear and harvest restrictions. Revision of the current framework procedure would allow adjustments to ACLs and catch targets. Amendment 2 also contains a process for the State of Florida to propose modifications to regulations. This process is now outdated and needs to be updated.

Two current Federal regulations may be causing detrimental impacts to the resource as well as creating enforcement problems. First, under certain situations and with a Federal tailing permit, Caribbean spiny lobster tails may be separated from the body onboard a fishing vessel. This allowance creates difficulties for law enforcement in determining if prohibited gear, such as hooks and spears were used to harvest the resource. Second, up to 50 Caribbean spiny lobsters under the minimum size limit may be retained aboard a vessel provided they are held in a live well aboard a vessel. When in a trap, such juveniles or “short” lobsters are used to attract other lobsters for harvest. This regulation increases the fishing mortality on juvenile lobsters and may facilitate their illegal trade. The Councils are considering modifying or repealing these two regulations.

On August 27, 2009, an Endangered Species Act (ESA) biological opinion evaluating the impacts of the continued authorization of the spiny lobster fishery on ESA-listed species was completed. The opinion prescribed non-discretionary reasonable and prudent measures (RPMs), to help minimize the impacts of takes by the spiny lobster fishery. Specific terms and conditions required to implement the prescribed RPMs include: Creating new or expanding existing closed areas to protect coral, allowing the public to remove trap-related marine debris, and implementing trap line-marking requirements. The Councils are considering alternatives to meet these requirements.

NMFS, in collaboration with the Councils, will develop an EIS to describe and analyze management alternatives to address the management needs described above. Those alternatives will include a “no action” alternative regarding each action.

In accordance with NOAA's Administrative Order 216-6, Section 5.02(c), Scoping Process, NMFS, in collaboration with the Councils, has identified preliminary environmental issues as a means to initiate discussion for scoping purposes only. These preliminary issues may not represent the full range of issues that eventually will be evaluated in the EIS.

Copies of an information packet will be available from NMFS (seeADDRESSES).

After the draft EIS associated with Amendment 10 is completed, it will be filed with the Environmental Protection Agency (EPA). The EPA will publish a notice of availability of the DEIS for public comment in theFederal Register. The draft EIS will have a 45-day comment period. This procedure is pursuant to regulations issued by the Council on Environmental Quality (CEQ) for implementing the procedural provisions of the National Environmental Policy Act (NEPA; 40 CFR parts 1500-1508) and to NOAA's Administrative Order 216-6 regarding NOAA's compliance with NEPA and the CEQ regulations.

NMFS will consider public comments received on the draft EIS in developing the final EIS and before adopting final management measures for the amendment. NMFS will submit both the final amendment and the supporting EIS to the Secretary of Commerce (Secretary) for review as per the Magnuson-Stevens Act.

NMFS will announce, through a notice published in theFederal Register, the availability of the final amendment for public review during the Department of Commerce Secretarial review period. During Secretarial review, NMFS will also file the final EIS with the EPA and the EPA will publish a notice of availability for the final EIS in theFederal Register. This comment period will be concurrent with the Secretarial review period and will end prior to final agency action to approve, disapprove, or partially approve the amendment.

NMFS will announce, through a document published in theFederal Register, all public comment periods on the final amendment, its proposed implementing regulations, and the availability of its associated final EIS. NMFS will consider all public comments received during the Secretarial review period, whether they are on the final amendment, the proposed regulations, or the final EIS, prior to final agency action.

A meeting of the Exporters' Textile Advisory Committee will be held on Tuesday, April 20th, 2010. The meeting will be from 1-4:30 p.m. Location: Training Room A, Trade Information Center, Ronald Reagan Building, 1300 Pennsylvania Avenue, NW., Washington, DC 20230.

The Committee provides advice and guidance to Department officials on the identification and surmounting of barriers to the expansion of textile exports, and on methods of encouraging textile firms to participate in export expansion.

The Committee functions solely as an advisory body in accordance with the provisions of the Federal Advisory Committee Act.

The meeting will be open to the public with a limited number of seats available. For further information contact Kim-Bang Nguyen at (202) 482-4805 or Larry Brill at (202) 482-1856. Minutes of all ETAC meetings are posted athttp://OTEXA.ita.doc.gov.

The order in which agenda items are addressed may change. The Committee will meet as late as necessary to complete scheduled business.

Although non-emergency issues not contained in this agenda may come before this group for discussion, in accordance with the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), those issues may not be the subject of formal action during this meeting. Actions will be restricted to those issues specifically identified in this notice and any issues arising after publication of this notice that require emergency action under Section 305(c) of the Magnuson-Stevens Act, provided the public has been notified of the Council's intent to take final action to address the emergency.

Special Accommodations

The meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Kitty M. Simonds, (808) 522-8220 (voice) or (808) 522-8226 (fax), at least 5 days prior to the meeting date.

1. The Interspecies Committee will meet to develop its work plan and explore the operations of the Committee in conjunction with existing management plans. They will consider NOAA's recent draft report on catch share policy and possibly draft comments on behalf of the Council. They will also discuss consolidation of FMPs and will examine joint plans with other Councils. They will begin to consider accumulation limits for the multispecies fishery, including possible control dates for such limits, and will hear a presentation from the North Atlantic Marine Alliance on their Fleet Visioning project.

2. Other business may also be discussed.

The Committee's recommendations will be delivered to the full Council at its meeting in Mystic, CT on April 27-29, 2010.

Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically identified in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the Council's intent to take final action to address the emergency.

Special Accommodations

This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Paul J. Howard (seeADDRESSES) at least 5 days prior to the meeting date.

1. The Joint Groundfish/Scallop Committee of the New England Fishery Management Council will meet to begin the preparation of a management action to facilitate the transfer of yellowtail flounder allocations between the groundfish and scallop industries. Yellowtail flounder is a target species for groundfish vessels, and is an incidental catch for scallop vessels. With the implementation of Annual Catch Limits in 2010, fishing opportunities of both fleets can be constrained by decisions on the how yellowtail flounder is allocated. Developing a mechanism to allow the transfer of yellowtail flounder between these fisheries may facilitate their respective activities and may reduce allocation issues between the two fleets. The Committee will develop a problem statement for the action, identify measurable goals and objectives, and will identify management alternatives. One alternative the Committee will probably develop would allow the formation of sectors within the scallop fishery for the sole purpose of exchanging yellowtail flounder with groundfish sectors established under the provisions of the Northeast Multispecies Fishery Management Plan. Other alternatives may also be developed by the Committee. Committee recommendations will be presented to the Council at a future date.

2. Other business may also be discussed.

Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically identified in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the Council's intent to take final action to address the emergency.

Special Accommodations

This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Paul J. Howard (seeADDRESSES) at least 5 days prior to the meeting date.

The Reef Fish Limited Access Privilege Program Advisory Panel will meet to further discuss issues related to the design, adoption, implementation, and, evaluation of reef fish limited access programs for the commercial and recreational sectors.

Copies of the agenda and other related materials can be obtained by calling (813) 348-1630.

Although other non-emergency issues not on the agenda may come before the Advisory Panel for discussion, in accordance with the Magnuson-Stevens Fishery Conservation and Management Act, those issues may not be the subject of formal action during this meeting. Actions of the Advisory Panel will be restricted to those issues specifically identified in the agenda and any issues arising after publication of this notice that require emergency action under Section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the Council's intent to take action to address the emergency.

Special Accommodations

This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Tina O'Hern at the Council (seeADDRESSES) at least 5 working days prior to the meeting.

The Department of Commerce (“Department”) preliminarily determines that certain magnesia carbon bricks (“bricks”) from the People's Republic of China (“PRC”) are being, or are likely to be, sold in the United States at less than fair value (“LTFV”), as provided in section 733 of the Tariff Act of 1930, as amended (“Act”), for the period of investigation (“POI”) January 1, 2008, through June 30, 2009. The estimated margins of sales at LTFV are shown in the “Preliminary Determination” section of this notice. Interested parties are invited to comment on this preliminary determination.

On July 29, 2009, the Department received a petition concerning imports of bricks from the PRC filed by Resco Products, Inc. (“Petitioner”). See “Petition for the Imposition of Antidumping Duties: Certain Magnesia Carbon Bricks from the People's Republic of China,” dated July 29, 2009. The Department initiated this investigation on August 25, 2009.See Certain Magnesia Carbon Bricks from the People's Republic of China and Mexico: Initiation of Antidumping Duty Investigations,74 FR 42852 (August 25, 2009) (“Initiation”).

On September 22, 2009, the United States International Trade Commission (“ITC”) issued its affirmative preliminary determination that there is a reasonable indication that an industry in the United States is materially injured by reason of imports from the PRC of bricks.See Certain Magnesia Carbon Bricks from China and Mexico: Investigation Nos. 701-TA-468 and 731-TA-1166-1167 (Preliminary),USITC Publication 4100 (September 2009).

Respondent Selection

In theInitiation,the Department stated that it intended to select respondents based on quantity and value (“Q&V”) questionnaires.See Initiation,74 FR at 42856. On August 19, 2009, the Department requested Q&V information from 35 companies that the Petitioner identified as potential exporters, or producers, of bricks from the PRC.SeeMemo to the File, dated September 10, 2009. Additionally, the Department also posted the Q&V questionnaire for this investigation on its Web site athttp://ia.ita.doc.gov/ia-highlights-and-news.html.

The Department received timely Q&V responses from sixteen exporters/producers that shipped merchandise under investigation to the United States during the POI.

On October 6, 2009, the Department selected Dalian Mayerton Refractories Co., Ltd. and Liaoning Mayerton Refractories Co., Ltd. (collectively, “Mayerton”) and RHI Refractories Liaoning Co., Ltd. (“RHI”) as mandatory respondents in this investigation, based on their volume of U.S. entries of bricks during the POI.SeeMemorandum to James Doyle, Office Director, Office 9, from Paul Walker, Analyst, through Scot T. Fullerton, Program Manager, regarding the “Investigation of Magnesia Carbon Bricks from the People's Republic of China: Respondent Selection,” dated October 6, 2009 (“Respondent Selection Memo”). The Department sent its antidumping duty questionnaire to Mayerton and RHI on October 6, 2009. Between October 27, 2009, and February 26, 2010, Mayerton and RHI responded to the Department's original and supplemental questionnaires.

On November 13, 2009, the Department determined that India, the Philippines, Indonesia, Colombia, Thailand, and Peru are countries comparable to the PRC in terms of economic development.SeeAugust 19, 2009, Letter to All Interested Parties, regarding “Antidumping Duty Investigation of Magnesia Carbon Bricks from the People's Republic of China,”attaching October 28, 2009, Memorandum to Scot T. Fullerton, Program Manager, Office 9, AD/CVD Operations, from Kelly Parkhill, Acting Director, Office for Policy, regarding “Request for List of Surrogate Countries for an Antidumping Duty Investigation of Magnesia Carbon Bricks from the People's Republic of China” (“Surrogate Country List”).

On December 24, 2009, Petitioner and RHI submitted surrogate country comments. No other interested parties commented on the selection of a surrogate country. For a detailed discussion of the selection of the surrogate country,see“Surrogate Country” section below.

On December 3, 2009, and December 10, 2009, the Department extended until January 7, 2010, the deadline for interested parties to submit surrogate value information. Rebuttal comments were due no later than January 12, 2010. Consequently, between Januay 8, 2010, and February 26, 2010, interested parties submitted surrogate value comments and multiple rounds of surrogate value rebuttal comments.

Postponement of Preliminary Determination

Pursuant to section 733(c) of the Act and 19 CFR 351.205(f)(1), the Department extended the preliminary determination by 50 days. The Department published a postponement of the preliminary determination on December 17, 2009.See Certain Magnesia Carbon Bricks from the People's Republic of China and Mexico: Postponement of Preliminary Determinations of Antidumping Duty Investigations,74 FR 66954 (December 17, 2009). As explained in the memorandum from the Deputy Assistant Secretary for Import Administration, the Department has exercised its discretion to toll deadlines for the duration of the closure of the Federal Government from February 5, through February 12, 2010. Thus, all deadlines in this segment of the proceeding have been extended by seven days. The revised deadline for the preliminary determination of this investigation is now March 3, 2010. See Memorandum to the Record regarding “Tolling of Administrative Deadlines As a Result of the Government Closure During the Recent Snowstorm,” dated February 12, 2010.

Postponement of Final Determination

Section 735(a)(2) of the Act provides that a final determination may be postponed until not later than 135 days after the date of the publication of the preliminary determination if, in the event of an affirmative preliminary determination, a request for such postponement is made by exporters, who account for a significant proportion of exports of the subject merchandise, or in the event of a negative preliminary determination, a request for such postponement is made by the petitioner. The Department's regulations, at 19 CFR 351.210(e)(2), require that requests by respondents for postponement of a final determination be accompanied by a request for extension of provisional measures from a four-month period to not more than six months. On February 17, 2010, and on March 3, 2010, RHI and Mayeton, respectively, requested that in the event of an affirmative preliminary determination in this investigation, the Department postpone its final determination by 60 days. At the same time, RHI requested that the Department extend the application of the provisional measures prescribed under section 733(d) of the Act and 19 CFR 351.210(e)(2), from a four-month period to a six-month period. In accordance with section 735(a)(2) of the Act and 19 CFR 351.210(b)(2), because (1) our preliminary determination is affirmative, (2) the requesting exporters account for a significant proportion of exports of the subject merchandise, and (3) no compelling reasons for denial exist, we are granting this request and are postponing the final determination until no later than 135 days after the publication of this notice in theFederal Register. Suspension of liquidation will be extended accordingly.

Period of Investigation

The POI is January 1, 2009, through June 30, 2009.See19 CFR 351.204(b)(1).

Scope of Investigation

Imports covered by this investigation consist of certain chemically bonded (resin or pitch), magnesia carbon bricks with a magnesia component of at least 70 percent magnesia (“MgO”) by weight, regardless of the source of raw materials for the MgO, with carbon levels ranging from trace amounts to 30 percent by weight, regardless of enhancements, (for example, magnesia carbon bricks can be enhanced with coating, grinding, tar impregnation or coking, high temperature heat treatments, anti-slip treatments or metal casing) and regardless of whether or not anti-oxidants are present (for example, anti-oxidants can be added to the mix from trace amounts to 15 percent by weight as various metals, metal alloys, and metal carbides). Certain magnesia carbon bricks that are the subject of this investigation are currently classifiable under subheadings 6902.10.1000, 6902.10.5000, 6815.91.0000, and 6815.99 of the Harmonized Tariff Schedule of the United States (“HTSUS”). While HTSUS subheadings are provided for convenience and customs purposes, the written description is dispositive.

Scope Comments

In accordance with the preamble to our regulations, we set aside a period of time for parties to raise issues regarding product coverage and encouraged all parties to submit comments within 20 calendar days of publication of theInitiation. See Antidumping Duties; Countervailing Duties; Final Rule,62 FR 27296, 27323 (May 19, 1997);see also Initiation,74 FR at 42853.

On September 8, 2009, Pilkington North America Inc. (“PNA”), a U.S. importer of bricks from the PRC and Mexico, filed comments concerning the scope of this investigation and the concurrent antidumping duty investigation of bricks from Mexico and the countervailing duty investigation of bricks from the PRC. In its submission, PNA requested that the Department amend the scope of these investigations to exclude ceramic bonded magnesia bricks with or without trace amounts of carbon or clarify that this product is outside the scope of these investigations. According to PNA, the ceramic bonded magnesia bricks it imports are clearly not within the intended scope of these investigations. The petitioner did not comment on PNA's submission. On February 24, 2010, the Department issued a memorandum confirming that ceramic bonded magnesia bricks are not included in the scope of the investigations.SeeMemorandum entitled “Certain Magnesia Carbon Bricks from the People's Republic of China and Mexico: Scope Comments,” dated February 24, 2010.

Non-Market Economy Country

For purposes of initiation, Petitioner submitted LTFV analyses for the PRC as a non-market economy (“NME”).See Initiation,74 FR at 42855. The Department considers the PRC to be a NME country.See, e.g.,Preliminary Determination of Sales at Less Than Fair Value and Postponement of Final Determination: Coated Free Sheet Paper from the People's Republic of China,72 FR 30758, 30760 (June 4, 2007), unchanged inFinal Determination of Sales at Less Than Fair Value: Coated Free Sheet Paper from the People's Republic of China,72 FR 60632 (October 25, 2007) (“CFS Paper”). In accordance with section 771(18)(C)(i) of the Act, any determination that a foreign country is an NME country shall remain in effect until revoked by the administering authority. No party has challenged the designation of the PRC as an NME country in this investigation. Therefore, we continue to treat the PRC as an NME country for purposes of this preliminary determination and calculated normal value in accordance with Section 773(c) of the Act, which applies to all NME countries.

Surrogate Country

When the Department is investigating imports from an NME, section 773(c)(1) of the Act directs it to base NV, in most circumstances, on the NME producer's factors of production (“FOP”) valued in a surrogate market-economy country or countries considered to be appropriate by the Department. In accordance with section 773(c)(4) of the Act, in valuing the FOP, the Department shall utilize, to the extent possible, the prices or costs of FOP in one or more market-economy countries that are at a level of economic development comparable to that of the NME country and are significant producers of comparable merchandise.As noted above, the Department determined that India, the Philippines, Indonesia, Colombia, Thailand, and Peru are countries comparable to the PRC in terms of economic development.SeeSurrogate Country List. The sources of the surrogate values we have used in this investigation are discussed under the “Normal Value” section below.

Based on publicly available information placed on the record, the Department determines India to be a reliable source for surrogate values because India is at a comparable level of economic development, pursuant to section 773(c)(4) of the Act, is a significant producer of subject merchandise, and has publicly available and reliable data. Moreover, we note that Petitioner and RHI both argued in their surrogate country comments that India should be selected as the surrogate country. Accordingly, the Department has selected India as the surrogate country for purposes of valuing the factors of production (“FOPs”) because it meets the Department's criteria for surrogate country selection.

Affiliations

Section 771(33) of the Act, provides that: The following persons shall be considered to be `affiliated' or `affiliated persons':

(A) Members of a family, including brothers and sisters (whether by the whole or half blood), spouse, ancestors, and lineal descendants.

(B) Any officer or director of an organization and such organization.

(C) Partners.

(D) Employer and employee.

(E) Any person directly or indirectly owning, controlling, or holding with power to vote, five percent or more of the outstanding voting stock or shares of any organization and such organization.

(F) Two or more persons directly or indirectly controlling, controlled by, or under common control with, any person.

(G) Any person who controls any other person and such other person.

Additionally, section 771(33) of the Act stipulates that: “For purposes of this paragraph, a person shall be considered to control another person if the person is legally or operationally in a position to exercise restraint or direction over the other person.”

Based on Mayerton's statements1that it is affiliated with its U.S. sales office, Mayerton Refractories USA LLC (“MRU”), and based on the evidence presented in their questionnaire responses, we preliminarily find that Mayerton is affiliated with MRU, which was involved in Mayerton's sales process, pursuant to sections 771(33)(E), (F) and (G) of the Act.

Based on RHI's statements2that they are affiliated with its U.S. sales office, Veitsch Radex America Inc., and based on the evidence presented in their questionnaire responses, we preliminarily find that RHI is affiliated with Veitsch Radex America Inc., which was involved in RHI's sales process, pursuant to sections 771(33)(E), (F) and (G) of the Act.

2See,e.g.,RHI's October 27, 2009, Separate Rate Application at 8.

Separate Rates

In proceedings involving NME countries, there is a rebuttable presumption that all companies within the country are subject to government control and thus should be assessed a single antidumping duty rate.See Polyethylene Terephthalate Film, Sheet, and Strip from the People's Republic of China: Final Determination of Sales at Less Than Fair Value,73 FR 55039, 55040 (September 24, 2008) (“PET Film”). It is the Department's policy to assign all exporters of merchandise subject to investigation in an NME country this single rate unless an exporter can demonstrate that it is sufficiently independent so as to be entitled to a separate rate.See Final Determination of Sales at Less Than Fair Value: Sparklers From the People's Republic of China,56 FR 20588 (May 6, 1991) (“Sparklers”);see also Notice of Final Determination of Sales at Less Than Fair Value: Silicon Carbide From the People's Republic of China,59 FR 22585 (May 2, 1994) (“Silicon Carbide”), and section 351.107(d) of the Department's regulations. However, if the Department determines that a company is wholly foreign-owned or located in a market economy, then a separate rate analysis is not necessary to determine whether it is independent from government control. In this investigation, one company, Mayerton, provided evidence that it was wholly owned by individuals or companies located in market economies in their separate rate application. Therefore, because Mayerton is wholly foreign-owned and the Department has no evidence indicating that it is under the control of the government of the PRC, a separate rates analysis is not necessary to determine whether Mayerton is independent from government control.See Narrow Woven Ribbons with Woven Selvedge from the People's Republic of China: Preliminary Determination of Sales at Less Than Fair Value and Postponement of Final Determination,75 FR 7244 (February 18, 2010) (determining that the respondent was wholly foreign-owned and, thus, qualified for a separate rate). Accordingly, the Department has preliminarily granted a separate rate to Mayeron.

3ThePolicy Bulletinstates: “{w}hile continuing the practice of assigning separate rates only to exporters, all separate rates that the Department will now assign in its NME investigations will be specific to those producers that supplied the exporter during the period of investigation. Note, however, that one rate is calculated for the exporter and all of the producers which supplied subject merchandise to it during the period of investigation. This practice applies both to mandatory respondents receiving an individually calculated separate rate as well as the pool of non-investigated firms receiving the weighted-average of the individually calculated rates. This practice is referred to as the application of “combination rates” because such rates apply to specific combinations of exporters and one or more producers. The cash-deposit rate assigned to an exporter will apply only to merchandisebothexported by the firm in question and produced by a firm that supplied the exporter during the period of investigation.”See Policy Bulletinat 6.

We have considered whether each PRC company that submitted a complete application or complete Section A Response as a mandatory respondent, is eligible for a separate rate. Although the Petitioner argues that RHI should not be eligible for a separate rate because of government pricing guidlines, we note that the Department's separate rate test is not concerned, in general, with macroeconomic/border-type controls,e.g.,export licenses, quotas, and minimum export prices, particularly if these controls are imposed to prevent dumping.See Certain Cut-to-Length Carbon Steel Plate From the People's Republic of China: Final Results of the 2007-2008 Administrative Review of the Antidumping Duty Order,75 FR 8301 (February 24, 2010) and accompanying Issues and Decision Memorandum at Comment 1.

To establish whether a firm is sufficiently independent from government control of its exportactivities to be entitled to a separate rate, the Department analyzes each entity exporting the merchandise under investigation under a test arising fromSparklers,as further developed inSilicon Carbide.In accordance with the separate rate criteria, the Department assigns separate rates in NME cases only if respondents can demonstrate the absence of bothde jureandde factogovernmental control over export activities.

1. Absence of De Jure Control

The Department considers the followingde jurecriteria in determining whether an individual company may be granted a separate rate: (1) An absence of restrictive stipulations associated with an individual exporter's business and export licenses; (2) any legislative enactments decentralizing control of companies; and (3) other formal measures by the government decentralizing control of companies.See Sparklers,56 FR at 20589.

The evidence provided by RHI and the Separate Rate Respondents supports a preliminary finding ofde jureabsence of governmental control based on the following: 1) an absence of restrictive stipulations associated with the individual exporter's business and export licenses; 2) the applicable legislative enactments decentralizing control of the companies; and 3) other formal measures by the government decentralizing control of companies,i.e.,each company's SRA submission, dated October 12, 2009, through October 27, 2009, where each separate-rate respondent stated that it had no relationship with any level of the PRC government with respect to ownership, internal management, and business operations.

2. Absence of De Facto Control

Typically the Department considers four factors in evaluating whether each respondent is subject tode factogovernmental control of its export functions: (1) Whether the export prices are set by or are subject to the approval of a governmental agency; (2) whether the respondent has authority to negotiate and sign contracts and other agreements; (3) whether the respondent has autonomy from the government in making decisions regarding the selection of management; and (4) whether the respondent retains the proceeds of its export sales and makes independent decisions regarding disposition of profits or financing of losses.See Silicon Carbide,59 FR at 22586-87;see also Notice of Final Determination of Sales at Less Than Fair Value: Furfuryl Alcohol From the People's Republic of China,60 FR 22544, 22545 (May 8, 1995). The Department has determined that an analysis ofde factocontrol is critical in determining whether respondents are, in fact, subject to a degree of governmental control which would preclude the Department from assigning separate rates.

We determine that, for RHI and the Separate Rate Respondents, the evidence on the record supports a preliminary finding ofde factoabsence of governmental control based on record statements and supporting documentation showing the following: (1) Each exporter sets its own export prices independent of the government and without the approval of a government authority; (2) each exporter retains the proceeds from its sales and makes independent decisions regarding disposition of profits or financing of losses; (3) each exporter has the authority to negotiate and sign contracts and other agreements; and (4) each exporter has autonomy from the government regarding the selection of management.See, e.g.,RHI's October 27, 2009, Separate Rate Application at 13-20.

The evidence placed on the record of this investigation by RHI and the Separate Rate Respondents, demonstrates an absence ofde jureandde factogovernment control with respect to each of the exporter's exports of the merchandise under investigation, in accordance with the criteria identified inSparklersandSilicon Carbide.As a result, we have granted the Separate Rate Respondents a margin based on the experience of the mandatory respondents and excluding anyde minimisor zero rates or rates based on total adverse facts available (“AFA”) for the purposes of this preliminary determination.

The Department has data that indicate there were more exporters of bricks from the PRC than those indicated in the response to our request for Q&V information during the POI.SeeRespondent Selection Memorandum. We issued our request for Q&V information to 35 potential Chinese exporters of the merchandise under investigation, in addition to posting the Q&V questionnaire on the Department's Web site. While information on the record of this investigation indicates that there are other exporters/producers of bricks in the PRC, we received only sixteen timely filed Q&V responses. Although all exporters were given an opportunity to provide Q&V information, not all exporters provided a response to the Department's Q&V letter. Therefore, the Department has preliminarily determined that there were exporters/producers of the merchandise under investigation during the POI from the PRC that did not respond to the Department's request for information. We have treated these PRC exporters/producers, as part of the PRC-wide entity because they did not qualify for a separate rate.See, e.g.,Preliminary Determination of Sales at Less Than Fair Value, Postponement of Final Determination, and Preliminary Partial Determination of Critical Circumstances: Diamond Sawblades and Parts Thereof From the People's Republic of China,70 FR 77121, 77128 (December 29, 2005), unchanged inFinal Determination of Sales at Less Than Fair Value and Final Partial Affirmative Determination of Critical Circumstances: Diamond Sawblades and Parts Thereof from the People's Republic of China,71 FR 29303 (May 22, 2006).

Section 776(a)(2) of the Act provides that, if an interested party (A) Withholds information that has been requested by the Department, (B) fails to provide such information in a timely manner or in the form or manner requested, subject to subsections 782(c)(1) and (e) of the Act, (C) significantly impedes a proceeding under the antidumping statute, or (D) provides such information but the information cannot be verified, the Department shall, subject to subsection 782(d) of the Act, use facts otherwise available in reaching the applicable determination.

Information on the record of this investigation indicates that the PRC-wide entity was non-responsive. Certain companies did not respond to our questionnaire requesting Q&V information or the Department's request for more information. As a result, pursuant to section 776(a)(2)(A) of the Act, we find that the use of facts available (“FA”) is appropriate to determine the PRC-wide rate.See Notice of Preliminary Determination of Sales at Less Than Fair Value, Affirmative Preliminary Determination of Critical Circumstances and Postponement of Final Determination: Certain Frozen Fish Fillets from the Socialist Republic of Vietnam,68 FR 4986, 4991 (January 31, 2003), unchanged inNotice of Final Antidumping Duty Determination of Sales at Less Than Fair Value and Affirmative Critical Circumstances: Certain Frozen Fish Fillets from the Socialist Republic of Vietnam,68 FR 37116, 37120 (June 23, 2003).

Section 776(b) of the Act provides that, in selecting from among the facts otherwise available, the Department may employ an adverse inference if an interested party fails to cooperate by not acting to the best of its ability to comply with requests for information.See Statement of Administrative Action,accompanying the Uruguay Round Agreements Act (“URAA”), H.R. Rep. No. 103-316, 870 (1994) (“SAA”);see also Notice of Final Determination of Sales at Less Than Fair Value: Certain Cold-Rolled Flat-Rolled Carbon-Quality Steel Products from the Russian Federation,65 FR 5510, 5518 (February 4, 2000). We find that, because the PRC-wide entity did not respond to our requests for information, it has failed to cooperate to the best of its ability. Therefore, the Department preliminarily finds that, in selecting from among the facts available, an adverse inference is appropriate.

When employing an adverse inference, section 776(b) of the Act indicates that the Department may rely upon information derived from the petition, the final determination from the LTFV investigation, a previous administrative review, or any other information placed on the record. In selecting a rate for adverse facts available (“AFA”), the Department selects a rate that is sufficiently adverse to ensure that the uncooperative party does not obtain a more favorable result by failing to cooperate than if it had fully cooperated. It is the Department's practice to select, as AFA, the higher of the (a) highest margin alleged in the petition, or (b) the highest calculated rate of any respondent in the investigation.See Final Determination of Sales at Less Than Fair Value: Certain Cold-Rolled Carbon Quality Steel Products from the People's Republic of China,65 FR 34660 (May 31, 2000) and accompanying Issues and Decision Memorandum at Comment 1. As AFA, we have preliminarily assigned to the PRC-wide entity a rate of 349.00 percent, a rate calculated in the petition which is higher than the highest rate calculated for either of the cooperative respondents.See Initiation.The Department preliminarily determines that this information is the most appropriate from the available sources to effectuate the purposes of AFA.

Corroboration

Section 776(c) of the Act provides that, when the Department relies on secondary information rather than on information obtained in the course of an investigation as facts available, it must, to the extent practicable, corroborate that information from independent sources reasonably at its disposal. Secondary info